HOW DOES A COURT DETERMINE WHO GETS THE CHILDREN AND WHO PAYS CHILD SUPPORT AFTER A DIVORCE?
When a couple with children under age 18 is going through divorce proceedings, specific planning is required to ensure the children are cared for after the divorce is finalized.
This is typically done through Parenting Plans and Child Support orders. A Parenting Plan outlines issues related to custody, such as the parent’s time with his or her child and general responsibilities of each parent for their children. In Kansas, some form of a Parenting Plan must be used and approved by the court if the divorce involves any minor children. While a Parenting Plan deals with matter related to the day-to-day care of the child, Child Support ensures the child will have sufficient financial support to be properly cared for. The court typically does this by requiring one spouse to make payments to the other spouse for expenses related to childcare.
Who Determines the Parenting Plan?
The court must approve every parenting plan to ensure it is in the best interest of the children involved. The need for a parenting plan arises immediately when a couple with children determine a divorce is forthcoming. Sometimes, the parents are able to establish a temporary parenting plan to use while the divorce is pending. In other situations, one parent may have to petition the court to get a temporary plan entered. In both cases, the temporary plan must outline the legal custody, residency, and the time to be spent with each parent. Typically, this temporary parenting plan will remain in place until the divorce is finalized, at which point, a permanent parenting plan will be entered. However, there may be circumstances that require the court or spouses to revise the temporary parenting plan prior to the divorce being finalized. If the parents cannot decide on a temporary parenting plan themselves, each parent will submit a proposed temporary plan to the court, and the court will determine a temporary parenting plan based on both of the proposed parenting plans, keeping in mind what will best suit the children’s best interest.
In every divorce or child custody proceeding, the court and legal counsel encourage parents to work together to form the temporary and permanent parenting plans. Parenting plans should be focused on the children. The plans should ensure that responsibilities of raising their children are divided and the well-being of their children, including physical, emotional, and mental wellbeing will be taken care of. Kansas courts typically seek to ensure the parenting plan is adaptable as the children age and the children are protecting from any harmful conflicts between the divorcing parents. Occasionally, the spouses agree to all terms of their parenting plan, yet it must still be approved by the court to ensure the agreement is in the best interest of the children. The parenting plan is not legally binding until approved by the court. Under Kansas law, there is a presumption that parenting plans agreed upon by the parents serve the best interest of the children. This is because Kansas law presumes that parents are in a better position than judges to make decision for their own minor children. However, courts can override this presumption if the court finds the plan does not serve the children’s best interest.
What Is Included in a Parenting Plan?
Parenting plans can quickly become detailed and complicated because they may have to include a provision dealing with virtually anything related to custody and caring for a minor child. This includes things such as which parent the child will be with on any given week night to how many times a week a parent is able to call their child when the child is with the other parent.
There are certain basic elements that must be included in a parenting plan to be approved by a Kansas court. These elements include an outline of the custody agreement and a method of dispute resolution outside of court. The outline of the custody agreement must include whether the parents will maintain joint or sole custody over the children and a schedule of each parent’s time with the children – even in situations where one parent is given sole custody of the children. Generally, parenting plans are more extensive than this because most parenting plans also touch on issues such as residency of the children, special occasion scheduling, health insurance obligations, education obligations, requirements for sharing medical and other important information regarding the children between parents, transportation obligations, and relocation procedures/limitation. This is not an exclusive list of things that may be included in a parenting plan, rather it is a list of general items covered by the parenting plan.
How is Child Support Determined?
Since 1987, Kansas has used mandatory guidelines to determine the amount of child support. The guidelines are updated routinely, with the last changes occurring in 2016. The guidelines establish the minimum amounts to be paid by a parent in a custody proceeding in Kansas. Kansas courts have some power to deviate from the guidelines in certain instances, but it is generally rare. In instances where the parents want to agree to a different financial arrangement, Kansas courts are still required to abide by the guidelines and must make specific findings to establish that any deviation serves the best interest of the children. Since these findings are generally rare, the guidelines can usually be relied upon when determining the amount of support for any particular case.
The guidelines in Kansas usually look to three factors to determine the minimum amount of support a child should receive. These three factors are: (1) the parents’ respective gross incomes, (2) support obligations owed or received by either parent in any other judicial proceeding, (3) the age of the children. Gross income is not the same as taxable income. Gross income can come from other forms of income, such as expense reimbursement or company allowances. Once the gross income is determined, the gross incomes of both parents are added and the portion of each income each spouse provides is used in arriving at a figure. Next, any support obligations are considered, including spousal maintenance and child support obligations from prior marriages. The factors look at both support paid and received for this factor. Finally, the court considers the number of children and their ages. There are three ranges for children’s ages: 0-5, 6-11, and 12-18. Each age range carries a different amount of required support, and that amount can change based on the number of children in each range. The younger the child is, the lower the amount required will be.
Can the Amount of Child Support Change over Time?
Simply put, yes. Pursuant to Kansas child support guidelines, children become costlier as they age. Therefore, child support amounts frequently change throughout a child’s life. In addition, the amount of support is generally reviewed every three years pursuant to statute. Outside of these two required periods of change, the amount can be altered if there is a material change in circumstances. A material change in circumstances includes things such as a change in salary/income by either parent, loss of employment, or a change in childcare or insurance cost. There are a number of other changes that could result in a material change in circumstances. Kansas also imposes an obligation on parties to inform the other parent of any such change. Failure to notify the other parent of such a change could possibly result in sanctions (a monetary fine) from the court. After a change of circumstances has occurred, either parent may motion the court to reevaluate the amount of support. After a material change, the amount of support can increase or decrease.
Parenting plans and child support are only two of the requirements for obtaining a divorce. These requirements especially require the parents to work together, despite the tension of other divorce proceedings that might be ongoing in court. It is important to have experienced legal counsel to advise a parent on what is and is not permissible in a parenting plan, in addition to what obligations they are likely to incur.
Further Questions?
The Johnson county divorce and family lawyers of Roth Davies offer a free consultation on all family law issues. If you need help with a divorce, child custody modification, child support modification, or paternity, give our experienced lawyers a call today.