In America today, divorce ranks high amongst the most controversial issues. It is estimated that around half of all marriages in the US ends up in separation. Thereby it needs no detailed explanation for the gravity of the issue to be understood. Divorce primarily affects the two partners in question, however, its effect on the children involved cannot be overlooked. Thereby laws regarding child custody, the legal care, and responsibility of a child have been instituted in almost every state. Nonetheless, very few persons comprehend how the court comes to the verdict of child custody as well as support (Charlow, 2015).
Legally, there is no outright way to determine who the better parent is. Therefore, a lot of procedures and factors are involved in determining child custody. Typically, divorcees can come to an agreement between their advocates as who should be granted child custody. In this manner, separation becomes easier as there are different types of custody i.e. joint, shared and split custody that may interest the views of both the parties. However, in the case that the two parties fail to come to an agreement it is the duty of the court to select which individual gains custody (Charlow, 2015).
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So as to make a fair decision, the court takes into account the Children's Law Reform Act, the Family Law Act, and the Divorce Act . There are several factors under the Children’s Law Reform Act that the court should affirm in each parent before making a judgment. They include plans for raising the child, the child’s preferences, ability to provide for the child’s physical as well as special needs if they are present and stability of home environment (Charlow, 2015). Preservation of the home environment is so important; in one particular case, the child custody was reversed after custodian parent decided to move thereby impacting the social climate of the child (Schrag v. Spear, 2015).
Furthermore, the same guidelines also apply to individuals who are not the biological parents of the children should they choose to divorce. It is important to note that a criminal record greatly diminishes the likelihood of gaining child custody. Thereafter, in most cases, the court makes use of a specialist i.e. psychologist who evaluates both the child and the parents in a series of interviews. Thereafter the psychologist selects the most suitable parent and consequently the court awards custody to that individual. In a case where the two parties are not the biological parents of the children, the same guidelines are followed. For example in C.B. v. J.B., the aunt C.B. gained full custody over the children (2013).
When it comes to child support, each state has its own different guidelines for calculating the amount and obligations. For example, some states give more freedom to the judge in determining the exact amount to be paid by the non-custodian parent while others do not. More often than not, child support entails the remittance of finances to enable the proper livelihood of the children, however, depending on the type of custody some obligations may be included. Despite the differences in state legislation regarding child support, the following factors are common all through; and they include income and needs of the resident and nonresident parent, standard of living prior to the child, needs of the child and the paying parent’s actual ability to pay (Charlow, 2015). Once child support has been declared little can be done to change the amount unless the payer proves that his/her financial capability has been diminished.
Conversely, child support has found heavy criticism in America as it is often misused as there is no clear guideline on what the resident parent should do with the money. For instance, in the Patete v. Rodriguez case, the respondent was found to use the funds majorly for her own pleasure and thus the child support was toned down from a monthly $3500 to $2043 (2013).
However, that alone should not serve as an excuse not to pay child support. It is important to note that failure to pay child support is a serious felony. There exist many avenues of which the custodian parent may enforce child support payment. The typical step would be to talk with the other party and sort out issues without involving the court and lawyers. However, in a case where the payer blatantly refuses to pay the custodian parent should contact the court through their lawyer. Charlow suggests that thereafter the court through the Department of Revenue Child Support Enforcement Division (DOR/CSE) can enforce payment in a number of ways; wage cuts, placing liens on personal property, levying bank accounts and even in extreme cases jail time (2015).
In conclusion, children are often the most affected parties in a divorce. As such it is imperative for the state to ensure that the children’s best interests are preserved throughout the divorce process. Hence a series of rigorous processes have been implemented in every state to ensure that the child stays with the right parent and that their financial needs are provided for.
References
Charlow, A. (2015). Awarding custody: the best interests of the child and other fictions. Yale Law & Policy Review , 5 (2), 3.
CB v. JB , 65 A.3d 946 (Pa. Super. Ct. 2013).
Schrag v. Spear , 858 N.W.2d 865, 290 Neb. 98 (2015).
Patete v. Rodriguez , 109 A.D.3d 595, 971 N.Y.S.2d 109 (App. Div. 2013).
