DIVORCE & FAMILY LAW
Custody of the Children
A divorce decree must resolve two custody
issues if there are children born of the marriage - “physical
custody” (with which parent will the children reside) and “legal
custody” (which parent will be responsible for making major
decisions in the child’s life, such as which church and school
the child will attend, medical decisions, etc.). Both physical
and legal custody can be shared (“joint custody”) or held solely
by one parent. If physical custody is granted to one parent,
then the other parent usually has rights of “visitation” and the
obligation to pay child support.
If you and your spouse cannot agree on the
custody issues,
then the Family Court will make a decision based
on what is in the best interest of the children. In making this
determination, the Family Court judge will order a “social
study” - a short meeting (about ½ hour) between the parents and
a court-appointed social worker. The social worker will
interview both parents and sometimes the children, and will then
recommend a custody order to the Family Court judge.
The Family Court will also consider
frequent, continuing, and meaningful contact of each parent with
the child unless the court finds that a parent is unable to act
in the best interest of the child.
Supervised Visitation
If you believe that your children are not
safe with your spouse, either because your spouse has abused the
children or will drugs or alcohol during the visitation or
otherwise, you can ask the court to order “supervised
visitation.” Supervised visitation means your spouse is limited
to visiting the children in a specific public place under the
supervision of another adult, like a visitation center or a
relative.
Child Support
The “non-custodial parent” - the parent who
does not get physical custody of the children - must pay child
support to the “custodial parent.” The payment of child support is
required by law and cannot be waived by the custodial parent. If
you and your spouse are unable to agree on the amount of child
support, the Family Court will determine the amount to be paid. The
Family Court may order either or both parents to provide child
support, considering: (1) all earnings, income, and resources of the
parents; (2) the earning potential, reasonable necessities, and
borrowing capacity of the parents; (3) the needs of the child; (4)
the full amount of public aid the child would receive without any
child support; (5) any other dependents of the parents; (6)
incentives for both parents to work; (7) an attempt to balance the
standard of living of the parents and avoid placing any parent below
poverty level; (8) to avoid any extreme changes in either parent’s
income; and (9) if a parent with school-age children is able to work
and does not, 30 hours of minimum wage income will be added to that
parent’s presumed income.
If the non-custodial parent is intentionally
unemployed in order to evade his or her child support obligations,
the Family Court will “impute” income to the non-custodial parent -
essentially, the court will pretend that the non-custodial parent is
working and is making a certain wage. This will force the
non-custodial parent to find employment quickly. If the
non-custodial parent is working, a portion of his or her paycheck
can be taken by the State to pay child support. If you and your
spouse plan to share joint physical custody, the Family Court will
still likely order the parent with more income to pay child support.
Military Issues
The federal “Servicemembers’ Civil Relief Act,”
formerly known as the Soldiers’ and Sailors’ Civil Relief Act,
provides certain rights and protections to military personnel and
their dependents. As a former JAG officer, I am well-versed and
experienced in handling family law issues affected by the
Servicemembers’ Civil Relief Act.
Temporary Orders for Child Custody, Child
Support, and Use of Marital Property
Once you or your spouse files the “Complaint
for Divorce,” which starts the divorce process, you can ask the
Family Court to issue temporary orders to temporarily resolve
certain issues while you are waiting for your divorce to become
final.
The Family Court can issue temporary orders regarding child
custody, child support, and the use of marital property (who gets to
use the car, who gets to live in the family home, etc.). You ask
for these temporary orders by filing a “Motion for Pre-Decree
Relief.” The Family Court will then hold a hearing on your motion,
where your spouse will have the opportunity to appear and present
his or her argument against your motion, and the judge will make a
decision.
Temporary Restraining Order
If you believe that your spouse poses a threat
to you and/or your children, you can ask the Family Court to issue a
temporary restraining order (“TRO”). A TRO is a court order that
can order your spouse not to contact you, your children, and other
persons living with you. It can also order your spouse to leave the
home. It can also give you temporary custody of your children.
Click on the links at the left to learn more about family law.
