What are grandparents' rights to visitation?

Although all states had statutes allowing grandparents to seek visitation with their grandchildren, the U.S. Supreme Court issued a ruling in 2000 that will make it more difficult for grandparents to obtain court-ordered visits with their grandchildren. In the case of Troxel v. Granville, the Court found that fit parents should be given more deference on decisions regarding with whom the child will associate than was provided by the Washington State law. The Court left open the possibility that some grandparents could obtain court-ordered visitation if, for example, the grandparents can show that they had a particularly strong relationship with their grandchildren, it would harm the child not to continue the relationship, and it is in the child's best interest to continue. The burden of proof is on the grandparents.

May courts award grandparents custody of their grandchildren?

Yes, but usually only if neither parent wants the children or if the parents are unfit. Courts examine such factors as the grandparents' age, health, and ability to care for the children. Courts will not deny grandparents custody because of their age, as long as they are healthy.

Some custody disputes between grandparents and parents arise when the grandparents have been raising their grandchildren for a considerable length of time under an informal arrangement. The grandparents may have become the "psychological parents" of the grandchildren by the time the parent or parents seek to regain custody. In this circumstance, courts in many states will allow the grandparents to retain custody, even if the parents are fit.

What are a stepparent's duties and rights?

The responsibilities of a stepparent depend on state law. A stepparent is not usually liable for a spouse's child from another marriage, unless the stepparent has adopted the child. Until then, the child's biological parents are liable for his or her support. Some states, however, make stepparents liable for the stepchild's support as long as the stepparent and the stepchild are living together.

A stepparent who does not adopt a spouse's child may not normally claim custody of the child if the marriage ends in divorce, although some states allow a stepparent to seek visitation. A stepchild does not share in the estate of a stepparent, unless the stepparent has provided for the stepchild in a will. However, unmarried stepchildren under eighteen may receive supplemental retirement benefits or survivor's benefits under Social Security.

American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association

How do courts set child support?

Under federal law, all states have guidelines to determine child support. The guidelines are formulas that consider the income of the parties, the number of children, and perhaps some other factors. The formulas are based on studies of how much families ordinarily spend on child raising. The formulas try to approximate the proportion of parental income that would have been spent for support of the child if the family had not been divided by divorce. Courts plug numbers into the formula and come up with an amount of support that should be paid. The parties can argue that because of special circumstances, a court should order more or less support than the guideline amount.

When working with guideline formulas, how are the parents' incomes determined?

States vary, with some using the parents' net income, and others using the gross income. Gross income is the parents' income from all (or almost all) sources, including wages, investments, and other sources. Net income is equal to gross income minus federal and state income taxes, Social Security tax, Medicare tax, health insurance, and perhaps union dues. For self-employed persons, the determination of income may be complex. Courts will allow deductions of reasonable business expenses before determining net income. But courts may disallow unusually high business expenses and depreciation that reduce income artificially without hurting the parent's cash flow. Thus, certain expenses that are deductible for tax purposes may not be deductible from income for the purpose of setting child support.

How much child support should a noncustodial parent expect to pay?

That question is difficult to answer precisely because guidelines vary among states and because courts may depart from the guidelines. The percentage formulas differ from state to state, but some examples can be given.

What is an example of a guideline for child support based on the income of only the noncustodial parent?

On page 83 is a comparison chart showing the "percentage of obligor's income" guidelines that were in effect in Illinois and in New York in the year 2003:

Percentage of Obligor's Income Guidelines

Under this guideline, if a noncustodial parent (supporting party) in Illinois had a net income of $40,000, the annual level of child support would be $8,000 for one child; $10,000 for two children; $12,800 for three children; and so on.

What's an example of a support formula based on the incomes of both parents?

Support guidelines based on the incomes of both parents often are referred to as income shares models. Under these guidelines, the court first adds the income of both parents. Then the court consults a long table--or a computer program--that assesses the total obligation of support as a percentage of the combined incomes and the number of children. Generally, the percentage drops as the combined incomes rise, on the assumption that financially well-off parents spend a smaller portion of their incomes on their children than parents who are less well off. The court multiplies the combined incomes by the percent figure and obtains a dollar amount. Then the responsibility to pay that support is divided between the parents in proportion to each parent's incomes.

Here is an example using Colorado's child support schedules. Assume a father and mother have two children and a combined annual gross income of $60,000--$40,000 earned by the father and $20,000 earned by the mother. The schedules put the guideline amount for support at $13,092 per year ($1,091 per month). Since the father earns two-thirds of the parties' combined income, he would pay two-thirds of the children's support ($8,728 a year) and the mother would pay one-third ($4,364). If one parent had primary custody of the children, the other probably would make a cash payment to that parent. The parent with primary custody probably would not make a cash payment as such, but would be presumed to be spending that amount on the children.

What are reasons for ordering more support than the guideline amount?

This depends, in part, on what expenses the guidelines include. Some common reasons for giving support above the base guideline amount include childcare expenses, high medical or dental expenses of the child that are not covered by insurance, and voluntary unemployment or underemployment of the parent who is supposed to pay support. Expenses for summer camps and private schools also might be a basis for setting higher support levels, particularly if private schools or summer camps were part of the family's lifestyle during the marriage.

What are reasons for setting support below the guideline amount?

Again, this varies from state to state, but common reasons for setting support below the guideline amounts include support obligations from earlier marriages and large debts related to family expenses to pay off. If the support guidelines are based on the income of only the noncustodial parent and if the custodial parent has an unusually high income, then the noncustodial parent can argue that the custodial parent's income is a reason for setting support below the guidelines. Also, if the guidelines do not have a cap or maximum level of income to which they apply, the high income of the noncustodial parent may be a basis for setting support below the guidelines. For example, using the Illinois guidelines described earlier, if a noncustodial parent has three children and an annual net income of $200,000, that parent may argue that the children do not need the $64,000 per year that the guidelines call for.

Is child support paid while the child is with the noncustodial parent for summer vacation or long breaks?

In most cases, yes. Courts figure that many major expenses for the benefit of the child--such as rent, mortgage, utilities, clothes, and insurance--have to be paid whether the child is with the custodial parent or not. So, usually, a full support payment is due. On the other hand, the parties--with the court's approval--may agree on payments in different amounts during vacation periods when the child is with the noncustodial parent. The lower amount for vacation periods with the noncustodial parent might reflect savings to the custodial parent for food expenses or childcare.

How is child support enforced if a parent does not pay?

The state and federal governments have a variety of techniques for enforcing payments of child support. The most common is a wage deduction, by which the employer sends a portion of the parent's wages to a state agency that then sends the money to the parent who has custody of the child. A federal law requires that after 1994, all child support orders must provide for an automatic wage deduction unless the parties have agreed otherwise or unless a court waives the automatic order. The state also can intercept the federal and state tax refunds of persons who have not paid support. Liens can be placed on property, such as real estate and automobiles. A parent who has not paid support can be held in contempt of court, which may result in a fine or a jail term. In addition, a parent who has not paid support can lose his or her driver's license or professional license. Government lawyers may help with collection of child support, though their efficiency varies from state to state.

Child support enforcement is a matter of increasing federal concern. Under the Child Support Recovery Act of 1992, it is a federal crime to willfully fail to pay child support to a child who resides in another state if the past-due amount has been unpaid for over one year or exceeds $5,000. Punishments under the federal law can include fines and imprisonment. States also have criminal penalties for failure to pay child support.

A parent may not reduce child support payments without a court order: The unpaid amounts will accumulate as a debt, even if a court later decides that there was a good reason for the reduction.

American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association