Family Health Legal Library

Marital Issues When Medical Problems Arise

Child Custody and Child Support

Obviously, child support is no longer the province of the wife. No longer are the children simply awarded to the wife by a court and the husband is left to the process of visitation. In fact, in many recent divorces, much of the fight has centered on the custody of the children issue. Fathers are putting up much more of a battle seeking custody of their children. Courts are far more willing now to examine such factors as the profession of the spouses, the amount of time fathers spend at home, the amount of time fathers spend with their children, the activities the fathers and mothers are engaged in with children, the environments in which the children will live after the divorce [generally based on the environment during the marriage] and many related factors.

Courts are often asked to do the impossible in trying to determine who will be better suited to have custody over the children. Also, children are often asked their preferences by judges, seeking to do the right thing. It should be remembered, however, how important the judge is in your individual case. Judicial discretion is the key to this area, and understanding how judges make these decisions might help you to understand this process.

Understanding the concept of judicial discretion is critical to understanding the impact of a court-ordered term or terms of a marital settlement agreement. Judges who receive actual testimony and evidence in in-court proceedings are considered in most areas of law to be the best judge of truthfulness. This is the case because these judges are able to observe the parties, and their witnesses who testify in the in-court proceedings. As a result, once a judge, who has received testimony and observed the truthfulness of various parties and witnesses, makes a decision at this level which affects the parties, it may be difficult to overturn or override the judge's decision. Of course, appeal lawyers specialize in these proceedings. But, as a practical matter, appeals and rehearing are difficult and expensive proceedings.

A couple who becomes obstructive and difficult with every issue in the proceeding is likely to alienate the judge. The effect of such conduct may make it difficult when the proceeding commences to convince the judge of the reasonableness of your legal position. Oftentimes, a spouse who appears to the judge from early in the proceedings to be reasonable and willing to compromise, will receive the benefit of the doubt in the later proceedings when the judge may make a decision and impose her/his will on the parties.

While there is no book or pamphlet that will substitute for a knowledgeable attorney representing you, simply keeping this brief discussion in mind, should one ever become involved in this type of protracted proceeding may help in a favorable resolution of these issues. It will certainly help you help your lawyer, and that will result in lower legal fees. Please remember, however, that in all but the simplest of divorces, experience dictates that a qualified lawyer be retained, no matter how civil the parties may act in the early proceedings.

Also, what understanding this judicial discretion demonstrates is that if the couple can agree on a custody program and a visitation schedule that is suitable to the court, without court intervention the couple will generally be happier with the outcome than with judicial involvement. Remember anything decided upon by the couple must still be approved by the court, but a predetermined outcome will almost always be assented to by judges.

Couples should also remember that judges who become dissatisfied with the way a marital settlement agreement is working after the divorce, will usually have the power to order modifications of the original agreement. In most jurisdictions each spouse will usually have the power to petition the court, via a procedural vehicle sometimes known as an Order to Show Cause (OSCO), for changes in the marital settlement agreement. This is further discussed in the section below entitled OSC's.

This is another area where prevention and planning in the true sense are difficult. But once it becomes inevitable that a divorce will occur, then cooperation and resolution of these issues, or even some of them, will help to keep legal fees lower, the cooperation better, and possibly the "battle" might be nonexistent.

Our Hypothetical: What about the effect of the accident on the child custody issues? Naturally, child custody would probably without a doubt be awarded to the wife. The only exception might be where the husband was extremely wealthy and had a number of people to take care of the children. Even in this case, many courts would be reluctant to separate the children from their mother. The father would have to provide the court with a serious amount of testimony that the mother would not care for her children. Such a result would be almost impossible, but in the law, nothing is impossible.

Child support is almost always a part of the marital settlement agreement. This represents the money the court will order, or the parties can agree, to be paid, usually on a monthly basis to one spouse for the support of the children. Usually, the support is paid to the spouse who has custody, since it is necessary for that spouse to provide food and shelter on a regular basis.

In deciding the proper amounts of child support, courts will again look to a number of similar factors as we discussed in the alimony section, including the income of each parent, the amount of time spent at home, the need for paid child care while the custodial parent is at work, as well as other factors specific to each situation.

Child support is almost always stated in a monthly or weekly amount in the marital settlement agreement. The period of time that child support must be paid is usually until the child is of the age of majority in the state in which he/she resides or until they finish school. Sometimes, but not often, this may mean college or vocational school beyond high school.

You should know that in most states, the marital settlement agreement contains separate provisions governing the medical and dental expenses of the children, and the educational expenses for the schooling of the child. These are typically spelled out in the agreement, but may not be included in the actual child support calculation. Thus, it is important to deal with each of these factors in writing in your agreement.

Our Hypothetical: What is the impact of the accident on our hypothetical father and mother, assuming a pending divorce and the need for child support for two children? If the mother is awarded custody of the children, the marital settlement agreement will no doubt provide for a payment each week or month to the mother for the children. However, in our case, where the mother seeks a divorce after the accident, the husband might have no means of support for himself, not to mention his children.

Of course, the husband, or more likely the manager of his affairs since he is paralyzed, would probably be required to pay child support by a court if his assets were such that he could afford it, despite his disability. The court would, however, most likely consider his disability and the future medical expense and rehabilitation required in assessing the amount of the support payment.

In this particular hypothetical, several things, if researched and set up earlier, could have assisted in the management of the children's support issues. Naturally, we are not suggesting that one look into the crystal ball and predict that an otherwise healthy working father would be involved in a life-threatening and paralyzing car accident. However, some of the things which could be set up to prepare for this possibility may not have a huge impact on the affairs of the parents when they are healthy. One of these would have been a trust for the children, into which a large amount of assets may have been transferred. The trust may have provided payments to the children or an appointed guardian to ensure that the money paid for child support would be really used for the support of the children. Another option might be a guardianship for the children.This would be particularly helpful in our hypothetical case of unanticipated paralysis.

Another Hypothetical: What if a mother of three children is never married? In seeking to raise the children on her own, she provides for their complete care and comfort, including shelter and education. Her father, however, is quite incensed at the children's father's lack of any support, either financially or otherwise. When the ten year old child needs braces for $2,000, her father becomes extremely upset and hires a private detective to find the father. He does and files a lawsuit against the father for failing to support the children. His daughter, however, does not wish to be a party to the lawsuit, and prefers to raise the children on her own without the father's help. Can the lawsuit be maintained by the mother's father?

While the sympathies may be with the mother's father, it is doubtful that he could maintain his lawsuit without his daughter being a party to it. Certainly, one could imagine some facts which might allow the father to maintain his lawsuit, but in this hypothetical the lawsuit would probably be thrown out of court.

If, however, he was able to convince his daughter to sue [and he was no longer a party] her recovery might be seriously different. First, she would have to find the children's father and serve him with the family law papers. The next step usually is to petition the court to require the father to take a paternity test which will usually establish the paternity issue to the satisfaction of the court. Assuming the father is the child's father, the court may make a number of orders requested by the mother, including child support. In the child support order, an amount which might pay for a portion of the house payment, and the food and educational expenses of the child may all be included.

Also, the mother's father may have some recourse by notifying the state authorities of the whereabouts of the child's father so that authorities may possibly, under some of the newer state child support laws, pursue the father for some statutory award of child support. If this is available, the wages of the father may even be garnished on a regular basis to make certain the payments are made.

Marital Issues When Medical Problems Arise
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