Frequently Asked Questions About Child Support/Custody
What is Child Custody?
Child custody has two parts. Legal custody is the right to make decisions as to how your child will be raised, including the right to participate in medical decisions, determine religion or education and decide what values you will teach your children. It involves all the issues that go into parenting your child other than physically having the child. You and the other parent can share legal custody such that you will each be able to be part of the decision making process for important matters which affect the welfare of the child. Usually day to day issues involving discipline or events in which the child will participate are matters which are decided by the parent who has physical custody of the child at that time. Physical custody is actually physically having the child in your physical custody and control. Visitation is a form of physical custody.
Are There Different Types of Physical Custody?
In North Carolina, the state recognizes several different forms of physical custody. For the most part, these forms of custody have to do with the amount of time the child spends with each parent and the amount of overnights the child spends with each parent is important in determining child support. The different types of custody are:
Sole Custody: One parent has the child for more than 2/3’s of the overnights and the other party has visitation.
Shared Custody: Each parent has the child for at least 1/3 (122) of the overnights on an annual basis, or where there are two or more children, and the parents have shared custody of at least one child. Split Custody: There are two or more children and the parents each have sole custody of at least one child.
How Does the Court Decide Who Gets Custody?
The court first determines if a party is a fit and proper person to have custody of the child. If the court determines that both parties are fit and proper to have some form of visitations, however slight, it will then move on to decide with whom it is in the best interest of the child for the child to be placed. It is not unusual for parties to share physical custody of the children.
What If Things Change?
Child custody and child support are two matters which can always be changed because the court looks at these matters as affecting the rights of the child. The court can always change a custody order if the moving party can show that there has been a substantial change of circumstances which make it in the best interest of the child for custody to be changed.
Can Parents Agree to an Out Of Court Custody Arrangement?
Yes, the majority of custody cases are settled by agreement of the parties. However, just as is true for a court order, custody can be changed to reflect what is in the best interest of the child.
What if We Have No Written Agreement or Court Order?
If there is no agreement or court order which determines who has custody of a child, then each of the parents has an equal right to physical custody of the child and an equal right to make decisions which affect the child’s welfare. The only exception is if the father of the child was not married to the mother and has not admitted paternity or been adjudged to be the father by a court. If and when paternity is established the father will then have the same rights to custody as the mother.
Is There an Age Where a Child Can Decide with Whom the Child Will Live?
No, there is no magic age when a child can make such a decision. However, the court will look at the child’s wishes in a way which is similar to how a parent looks at a child’s wishes, while the wishes of the child are important and will be considered by the court, the child is not the decision maker. There are many reason why a child should not go with the “preferred” parent, but, where possible, the court will give weight to the child’s desires.
Does My Child Have to Go to Visit With The Other Parent?
Neither you nor your child has the right to determine not to follow the order of the court or the written agreement of the parties. It is your obligation as a parent to promote a healthy and loving relationship between your child and the other parent. While there may be times that illness or other events may make a specific custodial period not possible, these times should be very rare. You must make the child available for the other parent’s custodial time. Having said that, if there are issues which cause you to believe that your child may be at risk of harm if the child goes with the other parent, then, again, it is your obligation as a parent to protect your child from harm. Should you be faced with such an unfortunate situation, you should be sure your child is safe and then you should see an attorney to help you get an emergency order to protect your child.
FREQUENTLY ASKED QUESTIONS ABOUT CHILD SUPPORT
How Is Child Support Determined in North Carolina?
In North Carolina, child support is set by statute and the amount of support is required to be reviewed and modified every 4 years. You can find a copy of the guidelines in the North Carolina General Statutes and you can find a copy on the “forms” page of the Administrative Office of the Court form number AOC-A-162. You can, also find a copy of the guidelines on the Child Support Enforcement. For a detailed explanation of the use of the guidelines and frequently asked questions about the guidelines, please click here. You can also find a motion to modify child support here.
What If My Spouse Is Self Employed?
It is always difficult to determine the correct income for a person who is self employed and does not keep accurate records. Many people who have small businesses tend to run personal expenses through their office. While this practice is not legal, it is widespread. There are several ways that the actual income can be determined. One way is the make a list of those personal items such as cell phone or a car which are paid for by the business and add them back in to the monthly expenses. Another way is the take all the financial records, including bank statements and credit card statements and see how much was actually spent in the past year for family expenses. You could, also, get a copy of the business financial records and compare the net business income with the income reported on an income tax return. A final way to determine income is to hire a forensic accountant to look at all the business financials and household finances and figure out the actual income and expenditures of each.
Can The Amount of Child Support Be Changed?
Yes, the amount of support can be changed every 3 years without requiring you to show a change in your expenses. However, prior to that time, you can request a change in the amount of support if your income changes by more than 15% or if there is an increase in the needs of the child by more than 15%. There may, also, be an extraordinary expense which may require allocation of the payments between the parties. If you wish to modify the child support after 3 years, you must file a motion in court to modify support.
What If My Income Has Changed Substantially?
Whether you are the payor or the recipient of support, if your income changes substantially (more than 15%) in any year, you can ask that the support be modified to reflect the ability to pay and the actual need. If, for example, a paying parent becomes temporarily disabled and unable to work, the support can be temporarily suspended or can be temporarily reduced by the percentage that the income is reduced. However, just because your income changes does not mean that the court will definitely change the amount of support required. You must file a motion in court to change the amount of support you are paying. Even if you and the child’s other parent agree to a change, it must be made into a consent order or the court will still expect you to pay the ordered amount of support. It may take a while before your motion to modify will be heard by the court. However, the court can modify the support retroactively to the date the motion is filed.
How Long Do I Have to Pay Child Support?
You are required to pay for the support of your child until your child reaches age 18 or graduates from high school, whichever is later, but in no event past the age of 20. You are not required to pay for your child to attend college. If, however, you agree in a separation agreement to pay for all or part of your child’s college educagtion or anything else after age 18 and high school graduation, such as health insurance or payments on the child’s car, the support you agreed to pay is part of a binding legal contract and you must pay the amount to which you agreed.
What If Custody Changes?
If custody changes you will need to either enter into a consent order or bring a motion to modify the custody and support. If it is by agreement you need to modify the agreement to reflect the new situation.
What If One of My Children Ages Out?
If your duty of support for any of your children ceases, you need to recalculate the support based on the current guidelines. Even though the support for the one child stops as an operation of law, you should not cut the support in half. The support is not based on equal amounts for each child. You may, however, recalculate the support pursuant to the guide lines and agree on the new amount, either by modification of an agreement or entry of a consent order. Remember, you must file the motion to modify as soon as possible so that it will be retroactive to the date of filing. It is a good idea to file a motion to reduce support several months before the child will reach the terminating event so that it will be heard at the appropriate time.