Every divorce is different and has its own set of unique challenges and nuances. However, couples with high net worth can be confronted with a variety of complex issues, from pre-nuptial agreements and division of property to child support and custody. Child custody battles can be particularly challenging during a parental separation. With child custody comes a very different set of challenges, such as the determination of child custody and support and the possibility of alimony or spousal support. Child support and child custody are different in their proceedings, expectations, and rules. However, they often go hand-in-hand when a couple gets divorced. Child support and custody can be further complicated if both parents are wealthy.
Different Types of Custody
During divorce, child custody should be determined based on the child’s best interest. While some states leave this decision up to the discretion of the judge, most states have guidelines that set forth a variety of factors the judge must consider in making a custody order. There are several different types of child custody such as Legal Custody, Physical Custody, Sole Custody, Joint Legal Custody, and Joint Physical Custody.
Legal Custody – Parents can make legal decisions on matters impacting the child.
Physical Custody – The child lives with the custodial parent.
Sole Custody – One parent has physical and legal custody of the child. The other parent has visitation rights only.
Joint Legal Custody – Both parents can make decisions that affect the child. If there is a major dispute between parents, the court can settle the dispute.
Joint Physical Custody – Parents share joint physical custody and the child lives with both parents, splitting their time between the two.
Ultimately, it comes down to determining the time the child spends with each parent and how parenting decisions are made. Typically, the courts begin with the assumption that frequent and consistent contact with parents are what’s best for the child. However, if the court discovers a parent poses a threat to the child’s wellbeing, including abuse and neglect, they will limit contact. Electronic visitation is common for non-custodial parents and are expected in high-income cases.
Child Support
All states have implemented child support guidelines which include the child’s needs and the parent’s ability to meet those needs. These needs typically include private school tuition, expensive hobbies, college tuition, the employment of a nanny, health care, child care expenses, any special needs, and the amount of time the child spends with each parent. There are two approaches to consider:
1) A certain percentage of the noncustodial parent’s income is allotted for child support. The percentage increases depending on the number of children in need of the support.
2) Another method includes using the combined income of both parents to determine the child’s needs. Each party is expected to meet those needs in the proportion of that party’s income to the total income of both parties.
What if you and your spouse reach an agreement that doesn’t follow the guidelines? In this case, the court will closely review your situation to evaluate if your agreement will efficiently meet your child’s needs. It’s also important to understand that any time the child’s needs are presumably being insufficiently met, the court will review the agreement in place and make a decision based on either party’s financial circumstances.
Couples should also consider addressing college costs in a separation agreement. This is because a judge cannot mandate a parent to pay tuition since child support obligations typically end when the child is 18 years of age. This is an opportunity for parents to consider estate-planning opportunities. Parents may desire to establish a trust fund for their children. Life insurance is another method of protecting their children financially.
It’s a common misconception that the wealthier of the two parents will automatically be awarded custody. Regardless of income, courts must award custody based on the child’s best interest.
For more information on child custody and any other family law related matter, contact the experienced Garden City divorce attorneys of Rieger, LLP today.