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 each parent's general responsibilities for their child. In Kansas, a Parenting Plan must be used and approved by the court if the divorce involves any minor children. While a Parenting Plan addresses day-to-day child care, Child Support ensures the child receives sufficient financial support to be adequately cared for. The court typically does this by requiring one spouse to pay the other for childcare expenses.
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 determines that a divorce is forthcoming. Sometimes, parents can establish a temporary parenting plan 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 the spouses to revise the temporary parenting plan before the divorce is finalized. If the parents cannot agree on a temporary parenting plan, each parent will submit a proposed temporary plan to the court, and the court will determine a temporary parenting plan based on both proposed plans, keeping in mind what will best serve the children’s interests.
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 the responsibilities of raising their children are divided and that their children's well-being, including physical, emotional, and mental well-being, is taken care of. Kansas courts typically seek to ensure the parenting plan is adaptable as the children age and that the children are protected 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 children's best interests. 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 interests of the children. This is because Kansas law presumes that parents are better positioned than judges to make decisions for their minor children. However, courts can override this presumption if they find that the plan does not serve the children’s best interests.
What Is Included in a Parenting Plan?
Parenting plans can quickly become detailed and complicated because they may have to include provisions covering virtually anything related to custody and the care of a minor child. This includes things such as which parent the child will be with on any given weeknight, and how many times a week a parent can call their child when the child is with the other parent.
Certain basic elements must be included in a parenting plan for it 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 consist of whether the parents will maintain joint or sole custody of the children and a schedule of each parent’s time with the children, even in situations where one parent is given sole custody. Generally, parenting plans are more extensive than this because they also address issues such as children's residency, scheduling for special occasions, health insurance and education obligations, requirements for sharing medical and other important information about the children between parents, transportation obligations, and relocation procedures/limitations. 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 a parent must pay in a Kansas custody proceeding. Kansas courts have some power to deviate from the guidelines in certain instances, but it is generally rare. When parents agree to a different financial arrangement, Kansas courts are still required to follow the guidelines. They must make specific findings to establish that any deviation serves the children's best interests. 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 typically consider 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, and (3) the age of the children. Gross income is not the same as taxable income. Gross income can come from sources other than wages, 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 the support paid and the support received for this factor. Finally, the court considers the number of children and their ages. There are three age ranges for children: 0-5, 6-11, and 12-18. Each age range requires a different level of support, and that level can vary depending 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 the Kansas child support guidelines, children become more expensive 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 changes in salary/income for either parent, loss of employment, or changes in childcare or insurance costs. Several other changes 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 result in sanctions (a monetary fine) from the court. After a change in circumstances, either parent may move 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 advise a parent on what is and is not permissible in a parenting plan, as well as the obligations they are likely to incur.
Further Questions?
The Johnson County divorce and family lawyers of Roth Davies offer a 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.