Chapter
V
CHILDREN
A note of caution: Changes in divorce law are constant and can occur at any time either through new legislation or new state or federal court decisions. Each year, many such changes will occur. Your best and most current information will come from a lawyer who is competent in divorce practice and who keeps abreast of such changes and who is familiar with your own particular marital history.
| Atty/Client | Married? | Jurisdiction | Grounds | Contents | Sep Prop | Mar Estate | Alimony |
| Fees | Extrajuris | Procedure | Settlement | Trial | Misc | Shortcut | Moving On |
Custody
and visitation Temporary custody order
Usual
custody order Split custody order Joint
custody order
Gender preference & best interests of the child Preference of a child
Visitation Standard visitation schedules
Grandparental visitation Sibling visitation
Third
party custody Who speaks for the child?
Child support guidelines Child support examples Health care Reasons for deviation
Other
important matters Future modification
If there are minor children (under eighteen years of age) of the marriage (including those legally adopted by the spouses), a divorce court having jurisdiction over such issues will ordinarily enter appropriate orders for their custody, visitation and support. And, if a child is eighteen but is regularly enrolled in and attending high school, support will be ordered through the child's eighteenth year until school is completed. Otherwise, after a child is an adult, Oklahoma courts do not have general power to enter child support beyond that time (but, see Chapter 10, Extrajurisdictional Agreements). The remainder of this chapter assumes that Oklahoma has and exercises jurisdiction concerning the various issues discussed. For a discussion of jurisdictional issues, See Chapter 3, Jurisdiction and Venue.
Custody and Visitation Top of Chapter
This section assumes that child custody will be awarded to one or both parents, which is always the case unless the parents agree to place custody in some non-parent or unless both parents are determined by the court to be "unfit." See Third Party Custody, following.
The court may award custody to either parent, or may divide custody between parents (split or divided custody), or may award custody to the parents jointly, in accordance with what the court concludes is in the best interests of the physical, mental and moral welfare of the child/children.
According to statute, no form of custody is preferred as a matter of law (with the possible exception of temporary orders pending divorce - see Temporary Orders, below). However, in practice, it is clear that with many, if not most, parents, lawyers and judges, preferences do exist. Whether sole or joint custody be awarded, a statute provides that, when it is in the best interests of a child, the court shall encourage parents to share the rights and responsibilities of child rearing upon parents' divorce or separation.
Temporary Custody Order Top of Chapter
In a statute which became effective November 1, 1999, the principle enunciated above was strongly reinforced. The new statute declares:
"It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. To effectuate this policy, if requested by a parent, the court shall provide substantially equal access to the minor children to both parents at a temporary order hearing, unless the court finds that such shared parenting would be detrimental to such child. The burden of proof that such shared parenting would be detrimental to such child shall be upon the parent requesting sole custody."
With this statute, a new term, "shared parenting", finds its way into the legislative lexicon, it never having previously used. Is this "joint custody"? The Legislature didn't say, although the policy statement concerning temporary orders while divorce is pending breaks new ground.
Usual Custody Order Top of Chapter
Most often when entering a "final" custody order, the court will award custody of all children to one parent and will award visitation to the other. In that event, all decision making concerning a child belongs to the custodial parent. This type of custody order continues to be, in fact, the preferred custody order in Oklahoma, although joint custody orders have gained in their frequency.
In some states, joint child custody has become preferred to the traditional custody/visitation order. The Oklahoma Legislature has expressly declared that no preference exists for any particular type of custody order (other than temporary orders, above). However, in fact, the custody/visitation decision rests solely with your particular trial judge and will be influenced by his/her predispositions concerning what form of custody he/she prefers. My experience is that most, but not all, Oklahoma trial court judges are unwilling to order joint custody unless the parties have agreed to it.
Split or Divided Custody Order Top of Chapter
The terms "split custody" and "divided custody" have no statutorily defined legal meanings and the terms are rather casually used to describe one of two forms of child custody orders.
Where there is more than one child, the terms may be used to describe that one parent has custody of one or more children and that the other parent also has custody of a different child or children. Courts do not favor such orders, preferring instead that the children reside together, with one parent or the other. Even so, such an order is sometimes desirable or necessary under certain circumstances. When it occurs, it is more usually found in a post-divorce modification order than in an initial child custody order.
"Split custody" is also used to refer to each parent having sole custody of the same child but during distinct and separate periods of time. For example, each parent might have sole custody for six months of the year. While such an award is possible, it is quite uncommon.
Joint Custody Order Top of Chapter
"Joint custody" refers to both parents being the custodians of the same child or children. As mentioned above, in a few states, such an order is presumed to be in the best interests of the children. While not so presumed in Oklahoma (with the possible exception of temporary custody orders, discussed above), it is nonetheless true that joint custody awards are occurring more frequently as time goes on. In Oklahoma, at least, opinions of psychologists may vary concerning a "favored" status for a joint custody order. As the concept of joint custody becomes more familiar to people, its use may become more frequent or more infrequent, depending upon public perception of its workability.
Confusion exists with many people as to what joint custody is. Joint custody has no particular form. It can be molded to fit any given family and its circumstances. Regardless of the form it may take, the heart of joint custody the idea it embraces.
The idea is that parents continue to share various aspects of custody, particularly in decision making which affects the child. In the usual custody order, decision making pertaining to a child is vested in the custodial parent. The heart of real joint custody is that parents continue to make child decisions in much the same way after divorce as they did before it occurred.
The joint custody statute calls for the court's approval of a joint custody plan which describes the child's physical living arrangements, child support obligations of the parents, medical and dental care, school placement and visitation rights of each parent. The plan can be as simple or complex as wanted or needed. The statute also provides for out-of-court arbitration to resolve matters upon which the parents are unable to agree.
If you want to know more about the pros and cons of joint custody, your lawyer should be able to provide you with further information.
Parental
Gender Preference and
The Best Interests of the Child
Top of Chapter
In 1983, the Oklahoma Legislature abandoned its former gender preference statute by which it was legally presumed that a child of "tender years" should be awarded to the custody of its mother and that a child of an age to become prepared for education or business should be awarded to the custody of its father. In practice, the "tender years" portion of the former statute was given emphasis and the latter portion was ignored. The result was that, in practice, children would usually be awarded to the custody of their mothers.
In place of the gender preference statute, Oklahoma statutes now declare that child custody should be determined by what is in the best interests of the physical, mental and moral welfare of the child. The gender preference was abolished and parents are "gender equals" concerning conflicting claims for custody, i.e., no father/mother custody preference exists as a matter of law. In fact, the Legislature later declared that a court shall not prefer a parent because of the parent's gender.
While some change is noticeable in social norms, the common notion - that a child's custody should be awarded to its mother, particularly concerning a very young child - lives on. Even though fathers are receiving custody more often than in the past, the percentage of cases in which that occurs by no means approaches one-half.
So, the "norms" of the past remain the "norms" of the present, even though less decidedly. More often than not, in the typical family unity, principal day to day parenting tasks are the mother's assignment by choice or by default. And, more often than not, a patently false notion persists and lingers in the minds of many people: If a mother doesn't ask for and receive custody of her children, she is not a "good" mother. The ridiculousness of that idea is immediately seen when noticing the obvious absence of such a presumption concerning fathers. Few people would fault the typical father were he to not ask for nor receive child custody. It remains true that society at large views fathers and mothers somewhat differently.
For these and other reasons, while gender preference has been abolished as the law of the state, it persists in the minds of the many people.
Preference of a Child Top of Chapter
The popular notion that when a child becomes thirteen or fourteen (or some other age) he/she has a right to chose where he/she will live is false under Oklahoma law.
If the trial court determines that it is in the best interests of a child for the child to do so, Oklahoma law permits the child to express his/her parental preference concerning custody and visitation matters. While such an expression of preference does not bind the court, it will be given increasing consideration as the child ages and matures. The amount of weight given such a preference will largely depend upon the predispositions of the trial court judge. Usually, by a child's age of eleven or twelve, most judges give consideration to such a preference.
The usual procedure for hearing what a child has to say is this: In his/her office, the judge will meet with the child and have informal conversation. Many judges prefer to do this privately, in the absence of parents and attorneys. Upon the request of either parent, the court must allow the presence of a court reporter during such meetings.
Ordinarily (even with joint custody orders), during the child's residence with one parent the other parent will receive visitation with him/her. Only in extraordinary circumstances where danger exists to the child will visitation and/or communication with the child be curtailed or supervised in some way.
During the past several years, it has become the tendency for the times of such visitation to become more rather than less. See, Temporary orders, above. Some psychological studies have concluded that the "best" visitation is that which is most like joint custody so that, in effect, the child has two homes and the visiting parent continues to be significant to the child as a parent.
Current statutory law requires that a court provide to the non-custodial parent "a specified minimum amount of visitation" and the encouragement of additional visitation and liberal telephone communications, unless the court determines otherwise.
Hence, by implication, general visitation, often labeled "reasonable and seasonable," is now in statutory disfavor. However, the statutes do not prohibit such visitation arrangement and presumably the parties may agree to such description.
Advantages and disadvantages exist with both the general or specific type of order. The "reasonable visitation" language allows for greater flexibility and is more appropriate where both parents demonstrate a willingness to be fair and flexible with the other; the specific type assures greater certainty and predictability and is more appropriate when one or both parents are perceived by the other as legalistic and unreasonable.
In fact, current statutes specifically provide that, in determining child custody, the court may consider which parent is more likely to allow the child to have frequent and continuing contact with the non-custodial parent in making the child custody decision.
Standard Visitation Schedules Top of Chapter
The parties may agree upon a schedule, or, at the request of either parent, the court may use its own. Many counties have such "standard" schedules in place. To see various "standard visitation schedules" around the state, click here. Oklahoma County's unofficial but nevertheless typically utilized"Standard Visitation Schedule" is the following:
The non-custodial parent shall have visitation with all minor children of the parties as follows:
I REGULAR VISITATION
The non-custodial parent shall have visitation every other weekend from Friday after school or day care until Monday morning when non-custodial parent returns child(ren) to school or day care. All weekends that include a Federal or State Monday holiday shall be part of the regular weekend.
II HOLIDAY VISITATION
Spring Break: Custodial Parent, Even Years, Non-Custodial
Parent Odd Years
Fall Break: Non-Custodial Parent Even Years, Custodial
Parent Odd Years
Thanksgiving Break: Custodial Parent Even Years,
Non-Custodial Parent Odd Years
First week of Christmas Break: Non-Custodial
Parent Even Years, Custodial Parent Odd Years
Balance of Christmas Break:
Custodial Parent Even Years, Non-Custodial Parent Odd Years
All Mothers Day weekends shall be spent with the Mother.
All
Fathers Day weekends shall be spent with the Father.
THE HOLIDAY SCHEDULE SUPERSEDES ALL REGULARLY SCHEDULED VISITATION.
The Holiday Schedule shall be governed by the school the child attends or would attend if not of school age.
III SUMMER VISITATION
The non-custodial parent shall have summer visitation for two weeks in June and must notify the custodial parent of the dates by April 30.
The non-custodial parent shall have summer visitation for two weeks in July and must notify the custodial parent of the dates by May 30.
The non-custodial parent shall have summer visitation the first full week of August.
All toys and clothes belong to the child(ren) and should travel freely between households and shall be returned with the child(ren) in a clean and orderly manner.
It is important to be aware that this visitation schedule is for the purpose of providing assured minimum amounts of visitation between non-custodial parent and child(ren). Visitation should exceed the number of occasions set out herein. In addition, liberal telephone communications between non-custodial parent and child(ren) are encouraged and should occur.
Grandparental Visitation Top of Chapter
During the past twenty-plus years, the Legislature has increasingly expanded the ability of grandparents (including great grandparents) to request and be granted grandchild visitation under differing circumstances. Those statutes have been the subject of several closely divided Oklahoma Supreme Court decisions and that pattern will likely continue for at least a few years.
A brief excerpt from the current statute reads, "[E]ach and every grandparent of an unmarried minor child shall have reasonable rights of visitation to the child if the district court deems it in the best interest of the child."
In 1998, the Oklahoma Supreme Court ruled that, to the extent the statute might be interpreted to confer standing upon grandparents to request visitation where the grandchild's parents continued to be married and objected, the statute was an unconstitutional intrusion on the right of parents to rear their children. In various other contexts such as visitation upon divorce, death of a parent, paternity, adoption, termination of parental rights, the statute has been upheld and such visitation has been allowed if the court finds the same to be in the best interests of the child.
The statute does not say whether such visitation rights may be asserted in a divorce action between the child's parents but it has been determined by the Oklahoma Supreme Court that a grandparent has "legal standing" to intervene in a divorce case to assert a custody, therefore visitation, request. Alternatively, a grandparent may file an independent suit in the county in which the custodial parent resides.
When granted, grandparental visitation is typically not as extensive as parental visitation and will often overlap a visitation period granted to the non-custodial parent. Unlike parents, who have constitutionally protected rights to the company of and access to their children, grandparental visitation only exists by reason of statute. Such rights exist only if a district court grants a particular request.
Visitation Rights of Sibling Top of Chapter
As of November 1, 1999, upon the death of a parent of an unmarried minor child, a parent of the child or a parent of the minor child's sibling may request and be granted an order of visitation between the siblings. Various factors are to be considered before granting the request, including: the willingness of the parents of the siblings to encourage and maintain a relationship between the siblings, the length and quality of the relationship between the siblings, among several other factors. "Sibling" is defined to include step-half-adopted brothers and sisters, as well as the regular kind.Third-Party Custody Top of Chapter
One parent or the other is entitled to child custody unless both parents are determined by the court to be "unfit" by a high standard of evidence called "clear and convincing." An objective definition of "unfit" has not been provided by the Legislature or the courts. However, it quite obviously means that a parent has very seriously and substantially failed to provide for the needs of the child. As noted above, grandparents (at least) have been granted "standing" to intervene in divorce litigation to assert such a claim.
Another statute, ancient and little used until the 1990's, provides that a civil action may be brought by the child, a grandparent or by several others to obtain custody of a child by reason of "abuse of parental authority." The use of that statute to obtain custody was approved by Oklahoma's appellate courts in 1993 and 1994.
Another statute provides an order of preference concerning child custody or guardianship awards, dependent upon what would be in the child's best interests:
1. Parent or parents jointly
2. Grandparent
3. Person named by a
deceased parent
4. Relative of either parent
5. Person in whose home child
has been living in a wholesome and stable environment
6. Any other person
deemed suitable
Who Speaks for the Child? Top of Chapter
Everyone claims to do so, but, quite often, no one really does. That is probably the reason that some judges have begun to appoint lawyers to assess and represent a child's best interests. Some lawyers are willing to perform such a service without charge. The appointment may be as the child's "guardian ad litem" (meaning for the purpose of the litigation only) or as the child's lawyer in the litigation.
A guardian ad litem is a decision maker whose job is to advocate what he/she decides to be in the child's best interests. While a child's preference may be considered, it is not controlling. On the other hand, if appointed as a child's "lawyer", in the typical attorney/client relationship the lawyer advises but the client decides. This form of appointment is quite obviously inappropriate for a child of limited age and/or maturity.
Before November, 1997, such appointments were not routinely made but were typically reserved for cases in which child abuse or some other severe adverse circumstance surrounding the child were made. However, with the implementation of a statute which became effective November 1, 1997, such appointments have become more common in any case in which custody is contested.
Child Support Guidelines Top of Chapter
In 1984, the federal government adopted legislation that required the states to adopt guidelines by which child support could be objectively and mathematically calculated. In Oklahoma, child support guidelines were first established by Oklahoma Supreme Court Rule in the Fall of 1987. The Oklahoma Legislature enacted its own guidelines in 1988. Aside from modest revisions, those guidelines remained pretty much unchanged until November 1, 1999, at which time both new computation tables and new child support variables became effective, at least on paper.
This writer has not seen a family law statute which was more poorly drafted, more confusing, or more complex than the Legislature's 1999 child support guidelines. Generally (but not always), child support amounts were increased by 15% to 20%, more or less, even though some parental income amounts at the high and low income levels decreased somewhat. That part was simple enough to understand and apply. But, the provisions pertaining to "shared parenting" (a term which has nothing to do with "custody" but only relates to support computation issues), child support adjustment in "earned income credit" and "child care deduction" income tax contexts were horribly written, even if no objection would be made to the intention to be "fair."
Not much more will be said about this confusion here, except to note that some trial court judges have either openly refused to apply parts of the new statute (notably, the Tulsa County divorce judges signed a letter saying they would not until an appellate court decision said they must or the Legislature cleaned up the law) or have avoided the new statute less directly. If you want more information on this topic, click here to go to my personal website.
At the time of this writing (March 28, 2000), action pending in the Legislature seems likely to pass, having already passed the House of Representatives 96-0. Consequently, no further discussion about the "new" law will occur in this document until the Legislature either acts or adjourns this spring. In its present form, the pending legislation would do away with the earned income credit and child care tax issues elements and would radically change the so-called "shared parenting" provisions contained in the present law.
Under all versions of Oklahoma Child Support Guidelines, the general notion behind them has been said to be that, to the extent possible, a child should receive the same economic benefit from both parents after divorce of his/her parents as before.
The method used in calculating child support under Oklahoma law is this:
(1) Determine the combined gross monthly income of both parents. Generally, "gross" income means "pre-tax" income. For the purpose of determining "gross" income, any child support being paid by a parent for other children is excluded, as is support alimony which is being paid to a former spouse. Certain types of public assistance are excluded from the definition. Also capable of being excluded from gross income are amounts one spouse might be ordered to pay to marital creditors. If a spouse is not working, income can be imputed to that spouse under different methods.
(2) Determine the amount of combined parental support from the child support table. A statutory table, rather like a tax table, lists monthly amounts of combined parental income in $50 increments, beginning at $50/month and ending with $15,000/month (no increments occur until $650/month combined parental income is reached). Each income bracket is further subdivided by the number of children, from one to six. The table identifies the base dollar amount of child support which each parent would be expected to contribute directly or indirectly for the children's needs.
(3) Determine each parent's percentage of income compared to the combined parental income. For example, if the whole parental monthly gross income is $4,000, $3,000 of which is earned by the father and $1,000 by the mother, the father's percentage would be 75% and the mother's 25%.
(4) Calculate base child support. The non-custodial parent's base child support would be the table's base dollar amount multiplied by his/her percentage of parental income.
(5) Calculate and add proportionate costs of child related health insurance and/or work related child day care expense. Amounts for these items are also divided between the parents, in accordance with their respective percentage of income of whole parental income.
Although calculation under the guidelines produces a dollar amount of support for each parent, regardless of which parent has custody, for certain reasons, the court can enter a child support order which varies from the calculated result. Possible cause for deviation from the guidelines should be discussed with your attorney.
Numerous complexities exist in various contexts, but such items won't be developed here. It is enough to know that the subject can become somewhat complex, even if that is not usually the case. Contrary to what many commonly think, there is much more to the guidelines than simply calculating the amount. That is only the first step. There are several aspects of the guidelines which are rather obscure and which will require the careful and informed analysis of your attorney.
Child Support Guidelines, Examples Top of Chapter
For the purposes of illustration, and assuming that no cause exists to deviate from the child support guidelines, and making no attempt to apply the controversial elements (shared parenting, earned income credit, child care tax deduction) of the current law, the following examples report calculated child support based upon the facts presented. To keep the illustrations as simple as possible, no amounts have been deducted from either parent's income for any reason.
Non-custodial parents are identified only as "Parent A" or "Parent B." All numbers are rounded to the nearest whole dollar or percentage. And, recall that the cost of any health insurance premiums for a child would also be divided proportionally between the parents.
The formula used in these examples is:
(Base Child Support + Work Related Daycare) = Total Support.
FAMILY A
Combined monthly gross parental income is $3,300, of which Parent
A receives $2,000 and Parent B receives $1,300. Custodial parent pays
work-related day care expense of $300.
| # of Kids |
A's Base + Day Care |
A's Total Amount |
B's Base + Day Care |
B's Total Amount |
| 1 | $322.39 + $181.80 = | $504.19 | $209.61 + $118.20 = | $327.81 |
| 2 | $467.23 + $181.80 = | $649.03 | $303.77+ $118.20 = | $421.97 |
| 3 | $550.25 + $181.80 = | $732.05 | $357.75 + $118.20 = | $475.95 |
| 4 | $607.82 + $181.80 = | $789.62 | $395.18 + $118.20 = | $513.38 |
| 5 | $659.33 + $181.80 = | $841.13 | $428.67 + $118.20 = | $546.87 |
| 6 | $705.38 + $181.80 = | $887.18 | $458.62 + $118.20 = | $576.82 |
FAMILY B
Combined monthly gross parental income is $4,300, of which Parent
A receives $2,800 and Parent B receives $1,500. Custodial parent pays
work-related day care expense of $300.
| # of Kids |
A's Base + Day Care |
A's Total Amount |
B's Base + Day Care |
B's Total Amount |
| 1 | $389.30 + $195.30 = | $584.60 | $208.70 + $104.70 = | $313.40 |
| 2 | $561.81 + $195.30 = | $757.11 | $301.19 + $104.70 = | $405.89 |
| 3 | $658.81 + $195.30 = | $854.11 | $353.19 + $104.70 = | $457.89 |
| 4 | $728.47 + $195.30 = | $923.77 | $390.53 + $104.70 = | $495.23 |
| 5 | $789.66 + $195.30 = | $984.96 | $423.04 + $104.70 = | $528.04 |
| 6 | $844.35 + $195.30 = | $1,039.65 | $452.65 + $104.70 = | $557.35 |
FAMILY C
Combined monthly gross parental income is $6,100, of which Parent
A receives $4,100 and Parent B receives $2,000. Custodial parent pays
work-related day care expense of $300.
| # of Kids |
A's Base + Day Care |
A's Total Amount |
B's Base + Day Care |
B's Total Amount |
| 1 | $497.95 + $201.60 = | $699.55 | $243.50 + $98.40 = | $341.90 |
| 2 | $717.02 + $201.60 = | $918.62 | $349.98 + $98.40 = | $448.38 |
| 3 | $839.33 + $201.60 = | $1,040.93 | $409.67 + $98.40 = | $508.07 |
| 4 | $927.36 + $201.60 = | $1,128.96 | $452.64 + $98.40 = | $551.04 |
| 5 | $1,005.31 + $201.60 = | $1,206.91 | $490.69 + $98.40 = | $589.09 |
| 6 | $1,075.87 + $201.60 = | $1,277.44 | $525.13 + $98.40 = | $623.53 |
FAMILY D
Combined monthly parental income is $10,000, of which Parent A
receives $8,000 and Parent B receives $2,000. Custodial parent pays work-related
day care expense of $300.
| # of Kids |
A's Base + Day Care |
A's Total Amount |
B's Base + Day Care |
B's Total Amount |
| 1 | $877.66 + $240.00 = | $1,117.60 | $219.40 +$60.00 = | $279.40 |
| 2 | $1,229.60 + $240.00 = | $1,469.60 | $307.40+ $60.00 = | $367.40 |
| 3 | $1,445.60 + $240.00 = | $1,685.60 | $361.40 + $60.00 = | $421.40 |
| 4 | $1,596.80 + $240.00 = | $1,836.80 | $399.20 + $60.00 = | $459.20 |
| 5 | $1,731.20 + $240.00 = | $1,971.20 | $432.80 + $60.00 = | $492.80 |
| 6 | $1,852.00 + $240.00 = | $2,092.00 | $463.00 + $60.00 = | $523.00 |
FAMILY E
Combined monthly parental income is $15,000, of which Parent A
receives $12,000 and Parent B receives $3,000. Custodial parent pays work-related
day care expense of $300.
| # of Kids |
A's Base + Day Care |
A's Total Amount |
B's Base + Day Care |
B's Total Amount |
| 1 | $1,097.60 + $240.00 = | $1,337.60 | $274.40 +$60.00 = | $334.40 |
| 2 | $1,568.80 + $240.00 = | $1,808.80 | $392.40+ $60.00 = | $452.40 |
| 3 | $1,844.00 + $240.00 = | $2,084.00 | $461.00 + $60.00 = | $521.00 |
| 4 | $2,038.40 + $240.00 = | $2,278.40 | $509.60 + $60.00 = | $569.60 |
| 5 | $2,209.60 + $240.00 = | $2,449.60 | $552.40 + $60.00 = | $612.40 |
| 6 | $2,364.00 + $240.00 = | $2,604.00 | $591.00 + $60.00 = | $651.00 |
As mentioned, these calculated amounts are the first step in determining child support. If cause exists, the amount of support calculated may be varied by the court. Your attorney will advise you concerning possible reasons for deviating from the amount calculated, concerning increases or decreases.
Health Care Top of Chapter
Additionally, the court is also required to make provision for the health care of children. This may include an order requiring one parent to carry health insurance and it may include an order concerning responsibility for uninsured medical expenses. Although the insurance premium is divided between the parties in accordance with their ratio of incomes to the whole, there is no requirement that uninsured health care expenses be divided in any particular way. Division of such cost is discretionary with the divorce court - usually the pro rata percentages are ordered to apply to costs of reasonable and necessary medical, dental, orthodontic, optometrical, psychological or any other physical or mental health expenses of the child not reimbursed by insurance.
If an order is silent concerning insurance or a division of health care expense, it would likely be presumed that the custodial parent would have total responsibility for any such costs. The reason is simple: a non-custodial parent's legal liability is measured by the court order. If the non-custodial parent is not ordered to do something, liability does not generally exist.
Reasons For Deviation Top of Chapter
While a court has authority to deviate from the support amount computed under the guidelines, deviation may not occur under the guidelines statute unless a rational cause exists to justify the deviation and in that event it must be expressed by the court in writing. The statute identifies some factors for possible deviation. Upon divorce, if one parent is loaded with a very large share of the marital credit obligations, that can be cause for adjusting that parent's gross income until the obligations are retired. Visitation transportation expenses can be adjusted between parents. If joint child custody is ordered, the court may consider the terms of the order in adjusting child support.
Other Important Matters Top of Chapter
The preceding discussion was concerned with subjects which a court is required to resolve when such issues are present in a case. Yours may involve other child related issues, such as identification of property belonging to a child or life insurance to protect payment of the amount of child support awarded by the court. Or, your case may be an appropriate one for considering the entry of an order prohibiting the custodial parent from establishing an out-of-state residence with the children until such a move's impact upon custody/visitation is determined.
See Chapter 10, Extra-Jurisdictional Agreements. The parties are capable of entering into agreements which deal with matters which the court could not properly consider without an agreement of the parties, such as funding of a child's post-high school educational expense.
Other items require your awareness:
Future Modification Top of Chapter
Orders which are entered concerning custody, visitation and support are generally capable of being modified at some future time (although this may not be true concerning Extra-Jurisdictional agreements, concerning which different rules might be applicable). Whether a prior child support order may be changed depends upon changes to parental income, one child reaching majority or other significant changes since the last child support order. Loudenback's Lay Divorce Guide is concerned with divorce situations and not later modification of orders. However, be aware that general child support, custody and visitation orders are capable of change in the future, based upon new conditions which may arise, and regardless of whether such orders were reached by agreement or by trial.
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