Common Family Law Myths… Debunked – Part 2 – Child Custody and Support

Part one of this 2-part series focused on some of the more financial aspects of family law cases, specifically with divorces.  Part 2 explores how I’ve debunked some of the most common family law myths relating to custody and child support.

  1. When kids reach a certain age, they get to choose where they live.

Holy cow, this comes up so much. “What is the age when Junior can choose where he lives?”… “At what point can Suzie decide to stop going for visitation?” My answer is always age 18, as the Court retains the ability to decide parenting issues while a child is a minor.

This doesn’t mean your child has no say where he/she lives, as the child’s wishes are one of the “best interests factors” the Court evaluates in custody cases.  But, how much weight is afforded to the child’s opinion depends on the child’s age, maturity level, and ability to express “reasoned and independent preferences” as to parenting time.  So, a 16-year-old teen is going to be taken more seriously than an 8-year-old; however, an immature 16-year-old who just wants to play video games and have no curfew at the other parent’s home will not get to choose where he or she lives.  This is why it is not just about age.

In these situations, I always caution parents to never tell their kids they can choose, or start deferring too much to their children in what the parenting schedule looks like.  Kids can sometimes take advantage of these situations to pit parents against one another (… yes, even the most well-behaved ones will try).  So, giving too much power to the children, and/or not deciding parenting issues solely between the parents, sets a bad precedent in most cases.  You wouldn’t let kids decide to ignore their curfew, to not do their homework, or to skip school, would you?  Of course, not.  If they didn’t want to do those things, you’d put your foot down and tell them it’s not-negotiable because you’re their parent.  You’d then enforce consequences if they didn’t listen.

This same mentality applies when it comes to seeing their parent, unless there is some other compelling reason parenting time should not occur under the other statutory factors. The takeaway here is that the child’s choice will never be the only deciding factor.

  1. I’m a Mom, so I automatically have custody.

There is a misconception that because Mothers do not have to prove paternity in a custody case where parents were not married, they automatically have sole custody until the Father files a court case.

The reality is, until there is an Order awarding custody, now known as parental allocation, or an Order for child support, neither parent truly has custodial rights.  This is not to be misconstrued as meaning Fathers still don’t have the primary responsibility of formalizing their rights in a Court case, but what it does mean is that a Mother does not automatically have the right to do what she pleases as it relates to a parenting time schedule, medical decision, school enrollment, and other issues.

  1. If I have 50-50 parenting time, I don’t have to pay child support.

With recent changes to the legislation on child custody laws, 50-50 schedules are becoming more common, but they are still not the “presumed” or “standard” schedule for most cases. A 50-50 parenting schedule is set where the conditions are ideal for co-parenting.

What I’m often asked is whether a 50-50 schedule means that neither parent pays child support.  The parents can certainly agree to this arrangement, but the Court still has to review this to see whether the parties’ agreement is in the best interests of the child.  To evaluate this, the Court will still do the child support calculation using the statutory formula.

The reality in most cases is that the parents often do not earn comparable incomes.  So, a 50-50 schedule will still result in the higher income-earner having to pay some child support to the other parent.  The new formula does take into consideration the parties’ shared physical custody, so the calculator will require you to account for the number of overnights annually each parent has under the schedule.   The calculator also assigns responsibility to the parents for how health insurance premiums will be paid, extracurricular costs, and uninsured medical expenses, all in addition to the basic child support figure.

  1. Dads won’t get custody because the Courts favor Moms.

Perhaps this was a more common result 20 years ago, but in modern family law cases, this myth could not be further from the truth.  In fact, the legislature recently amended the Illinois child custody laws in 2016 to make it very clear that the Courts should be making all custody determinations with an eye toward ensuring the children have strong and healthy relationships with both parents.  Additionally, the Courts are to recognize that a parent’s frequent access to the children is in the children’s best interest.

As such, the legislature also enacted new statutory factors for the Court to consider when deciding what custody schedule would be implemented by the parents.  Many of these factors are centered around the idea that the children’s lives should continue much as they have pre-divorce, looking at their adjustment to their home, school and community, and how the parents shared parenting responsibilities for the last 2 years.

Since many families now have both parents working outside the home, it is increasingly common for both parents to be actively involved in the children’s day-to-day care.  So, in those situations, it is unlikely for the Court to “favor mom” just because of the antiquated idea that only Mothers were caring for children.

  1. No child support = no visitation OR denial of visitation = no child support

Many clients come into my consultation and tell me that they don’t want to pay child support because they aren’t seeing their kids.  Or, conversely, that they don’t want to let the other parent have visitation because he/she stopped paying child support on their own.

The statute does not allow either of these situations to occur.  Failure to pay child support is not a basis to withhold parenting time, and denial of parenting time does not then allow a parent to cease their child support payments. If a parent is encountering either of these situations, there are remedies available by the Court to enforce the prior Orders.  The Courts do not allow parents to just take things into their own hands to incentivize or punish the other parent for their actions, as doing these things is contrary to the children’s best interests.  The child should not be prohibited from seeing their parent just because he/she hasn’t paid support, and a child should not be unsupported financially just because the other parent is not allowing time.

 

Have any of the above issues come up in your divorce or custody case?  If so, or you’d like more information about the topics discussed, call Strieker Law Firm today to schedule a consultation with Kristen C. Strieker.

Leave a Reply

Close Menu