Custody (Residential Time)

How do courts determine the residence for the children in a divorce?

The court will enter a “Parenting Plan” which is a court order. If the parties cannot agree, the courts will often appoint a guardian ad litem who provides the court with a written assessment of who is the preferred parent for the children to reside primarily with. However, it is the court that will make the ultimate decision based on the report of the guardian and other information presented to it from the parties and their attorneys.

My spouse and I want flexibility in our parenting plan. Can’t we simply state in the plan that our visitations will occur with the children “as agreed upon?”

Yes. But problems will arise when a disagreement inevitably occurs. When this happens, the primary residential parent could unilaterally decide that there is no “agreement” and deny the other parent visitation. Thus, open provisions in parenting plans often lead to costly litigation in the future.

My former spouse has unfairly kept me from seeing the children and is in violation of the parenting plan. Do I still need to pay child support?

Yes. Your obligation to pay child support is completely separate from the other parent’s failure to comply with the parenting plan. You may wish to consult with an attorney to assist you in bringing a motion to hold the other parent in contempt for violation of the parenting plan.