Child Custody and Child Support in a Separation Agreement

Handling Child Custody and Support during a Separation

How a Separation Agreement Can Protect Your Children

During marital separations, emotions can run high. It can be difficult for some couples to remain amicable, which could cause disagreements that may negatively affect your children.
To help to reduce friction between you and your ex-spouse and make the separation process as smooth as possible for your children, it is important to create a Separation Agreement that includes information about child custody and child support.
This article will take you through how to negotiate and include child custody and support in your Separation Agreement so that you can protect your children from experiencing any strain from the breakdown of your relationship.

What Is Child Custody?

Child custody establishes how parents will care for their children and lays out the rights and responsibilities of the parents after a divorce or separation.
Child custody helps to arrange how the following questions will be addressed post-separation:
  • Will one or both parents have full control over the children and be able to make decisions and care for their needs?
  • Who will take care of the children on a daily basis?
  • How will decisions about the children be made?
  • How will disagreements be resolved?
  • Where will the children live?
Choosing the right arrangement for your situation is essential so that you can lessen the impact of your separation on yourself and, more importantly, your children.

What Are the Different Types of Child Custody Arrangements?

There are different custody arrangements that govern how the children are cared for and how decisions are made after you and your former spouse separate or divorce. Legal, physical, sole, and joint are terms that describe the type of custody arrangement in place.
Legal custody is when a parent or parents are legally entitled to make decisions for their children. Legal custody can be granted to one parent (i.e. in a sole custody arrangement) or shared by both parents (i.e. in a joint custody arrangement). Generally, a court will uphold decisions made by a parent with legal custody and overturn decisions made by a parent without legal custody.
Physical custody, sometimes called residential custody, is when a parent has control over the day-to-day care of the children. This person is also called the primary caretaker. Usually, the children live with the parent who has physical custody of them. However, it is possible for both parents to have physical custody, meaning the children live with both you and your ex-spouse at times. In most instances, one parent will be the primary caretaker who lives with the children and is responsible for day-to-day decisions.
Sole and joint custody arrangements determine whether one parent or both parents have legal and/or physical custody of the children.
Sole custody means one parent has full legal and physical custody of the children and the other parent does not. In this instance, the other parent could have access or visitation rights. Sole custody is usually only granted by a court if one parent can prove that a sole custody arrangement is what’s best for the children.
Joint custody is sometimes called shared custody or 50/50 custody. In this arrangement, parents can have joint legal custody (meaning both parents can legally make decisions for the children) and/or joint physical custody (meaning the children share their time living in both parents’ homes). In other words, joint custody means both parents have legal custody, physical custody, or legal and physical custody.
The parent or parents with custody of the children are called the custodial parent or parents. A noncustodial parent is often granted access and visitation so that they can still be involved in their children’s lives.
Did you know?

Custody and visitation rights aren’t just for biological parents. A person who acted in place of a parent, such as a step-parent or a grandparent, can petition the court for these rights. However, this also means that this person could be held responsible for child support payments.

What Is the Best Custody Arrangement for Your Situation?

When choosing which parenting arrangement works for you, there are many different factors to consider. When a court determines custody, for example, they evaluate:
  • The children’s overall well-being
  • If one parent was the primary caregiver for the children in the past
  • A parent’s ability to instruct, encourage, and discipline the children
  • Which home or area the children currently live in
  • The mental and physical health of a parent
  • The child’s relationship with a parent
  • A parent’s integrity and behavior
The children’s ages are also considered. For instance, custody cases involving an infant could be handled differently than custody cases involving a teenager.
Overall, the courts ask who can take better care of the children. So, when you’re creating your own parenting arrangement, you should ask the same question.

Who Makes Decisions for and about Your Children after You Separate?

You have many options on how to make decisions about your children with your ex-spouse during separation. You can make:
  • Joint decisions, meaning you and your ex-spouse would discuss and decide together
  • Sole decisions, meaning you and your ex-spouse make your own decisions
  • Divided decisions, meaning you make some decisions (for example, decisions about health care and school) and your ex-partner makes other decisions (for example, decisions about religion or culture)
How you decide to handle decisions between you and your ex-partner depends on a variety of factors, but ultimately, creating consistency in both homes is important.

What Decisions Will You Need to Make for Your Children after Separation?

After a separation, there are two main types of decisions that will need to be made in your children’s lives: major and day-to-day.
Major decisions are decisions involving significant aspects of your children’s lives, such as:
  • Education: Where will your children go to school?
  • Health care: Will you and your ex-spouse attend your children’s doctor’s appointments together?
  • Food: Is there anything your children are not allowed to eat?
  • Religion or spiritual beliefs: Will your children follow certain religious or spiritual practices?
  • Holidays: Where will your children celebrate certain holidays?
  • Travel: What type of information will you provide to the other parent when traveling away from the home?
  • Language: What language or second-language will your children speak?
  • Culture: Will your children follow any cultural practices?
It is beneficial to define what is and what is not considered a major decision with you and your ex-husband or ex-wife. It is also important to discuss how disputes between you and your ex-partner will be resolved.
For example, if you and your ex-partner are both adamant on spending Christmas with your children, then consider a compromise where one of you celebrates on Christmas Eve and the other celebrates on Christmas Day. Overall, communication and compromise are fundamental to avoiding disagreements between you and your former partner.
Day-to-day decisions are routine decisions regarding the daily aspects of your children’s lives. While one parent is often required to make these decisions due to their sheer physical presence, some of these decisions can be made together. For example:
  • What should the children eat for dinner?
  • What time should the children go to bed?
  • When should the children do their homework?
You and your ex-partner should discuss and answer daily routine-related questions together to establish consistency for your children in both of your homes.

Where Will Your Children Live after Separation?

Where your children will live is one of the first major decisions you will need to make after separating. In some instances, this decision is easy: the children will live in the home they lived in before you and your partner separated and with the parent that remains in that home. However, sometimes this is not what is best for the children nor is it your only option.
Generally, children will live with the parent who has physical custody and will spend time with the other parent through visitation schedules, but children can also live in both homes through a shared living arrangement. This means your children live in both homes for specific durations of time (such as a week or a month).
There are also other living arrangements such as a bird’s nest arrangement, a relatively new living arrangement for separating couples that plan to co-parent. Essentially, a bird’s nest arrangement is where one home becomes the "family home".
The children live in the family home full-time, and the parents commute to and from the residence. When one parent resides with the children, the other lives in a separate home. This causes parents to adapt to the major changes resulting from the separation instead of the children.
Bird’s nest arrangements are not for everyone, and there are a few downfalls. For instance, this arrangement can be expensive because you may need three homes instead of two. It could also be awkward or unworkable because you are required to share household responsibilities with your ex-partner, and even simple tasks such as cleaning and buying groceries could be stressful and cause unnecessary conflict.
Another option is asking your children which home they prefer to live in. Generally, a court will consider the child’s living preferences if they are 12 years of age or older. However, the best living arrangements put the children’s needs first, so considering their opinions—at any age—could be helpful when making this decision.

Moving to a New City, State, or Country with Your Children

After separating, some parents may decide to start their new life by moving to a different city, state, or country. However, moving with your children after you separate from your ex-wife or ex-husband is often not allowed. In most states, even the custodial parent cannot move to a new geographical location unless they get permission from the other parent or the court.
When moving with children, the courts will look at the advantages and disadvantages of moving. For instance, if moving provides the custodial parent with more time to spend with the children and in turn improves the quality of the children’s lives, a court may approve the move.

5 Tips for Co-Parenting

Co-parenting can be difficult to navigate in the beginning, but it helps to create consistency in your children’s lives after you and your spouse are separated. Try to use these tips to make the transition for you and your family easier and more straightforward.
1. Be thorough and specific: Nothing is worse than disputing something you thought was already agreed upon. It’s also disappointing to find out the plan you created together was misunderstood by your ex-spouse.
For example, it could have been decided that you and your former partner would share holidays, yet you both assumed you would have the children for Christmas this year. If you don’t coordinate a specific schedule for holidays, a dispute could arise.
An easy way to sort out holidays is to have one parent take the children on certain holidays on odd years and the other take them for certain holidays on even years.
2. Don’t involve your children: Some individuals choose to communicate plans or changes to their ex-husband or ex-wife through their children. This is never a good idea as it can put your children in an uncomfortable situation and can cause needless conflict.
Always create arrangements with each other and not your children. If this is difficult, consider getting help from a third party such as a parenting expert, mediator, or lawyer.
3. Create and confirm your agreement using email instead of in person or by phone: Written discussions transfer more easily to a Separation Agreement than oral discussions. Written discussions can also help you manage disagreements caused by misinterpretations.
4. Create consistency in your children’s lives: Your children may have to move back and forth between your home and your former spouse’s home. Ease the transition by agreeing on certain rules for both homes. Consistency will help your children understand what is expected of them without question. It will also help you make day-to-day decisions.
5. Agree to work together: Your children need guidance and influence from both you and your ex-spouse. Working together means involving your ex-spouse in your children’s lives. This could be done by arranging times for phone calls to the other parent or examining your child’s mood and behavior together.

How Does Child Support Work?

After you and your ex-spouse have determined how to care for your children, it’s time to consider how you will pay for their expenses like food, toiletries, school, health care, and extracurricular activities.
Child support is a continuous payment made by one parent, who is called the obligor or payor, and provided to the other parent—the primary caretaker—who is also known as the obligee or recipient.
Generally, the number of children and the payor’s gross income is used to decide the child support payment amount based on state-regulated child support guidelines.
There are no federal guidelines for child support calculations, which means child support payments in California could differ from child support payments in New York.

When Does Child Support End?

Child support ends when your children are no longer dependent or if they grow to be above the age of majority. In most instances, this is when a child turns 18. However, there are a few other significant events or circumstances that impact when child support will end.
For example, child support payments will generally end if your child moves to a home that does not belong to you or your former partner. That said, if your child moves to a new home to attend school full-time, even if they are above the age of 18, child support may still be expected.
Support obligations also differ when a child has certain disabilities. In most instances, if the child’s disabilities prevent the child from living independently, even if they are above the age of majority, child support could still be required.
Bankruptcy, a legal procedure used to absolve outstanding debts, does not terminate child support payment obligations. This means you will still be required to make your monthly or yearly support payments even after you’ve declared bankruptcy.

In this instance, you can inform the court of your financial situation and request a reduction, but you can’t stop or reduce the payments yourself.

Overall, be sure you know when your child support obligations should end based on your children’s age and situation and what instances could extend your child support payments.

How to Discuss Changes of Circumstances after Your Separation Agreement Is Made

It’s important to understand that after you draft your Separation Agreement, something substantial about your situation could change, and these changes could affect the agreements made between you and your ex-partner. This is called a "material change of circumstance".
You can avoid some problems by including clauses in your Separation Agreement that address changes to specific situations. For instance, you can agree to increase or decrease payments by a certain percent if the income amount used to determine support is different than anticipated.
There are a variety of situations that could impact your agreement such as:
  • You lost or changed jobs or made less money than expected
  • Your children’s extracurricular activities have changed and more support is required to pay for these activities
  • Your children moved to a different residence such as from your home to your former spouse’s home
  • Your children started university
You can try your best to include contingencies in your original Separation Agreement, but you may need to draft an entirely new one. If so, be sure to cancel your previous agreement in writing.

Include All Your Child Custody and Support Plans in Your Separation Agreement

It is important that you include all the details you discussed with your ex-partner in your Separation Agreement to avoid disputes later on.
Include information such as:
  • How will decisions be made
  • Who will make decisions
  • Where the kids will live
  • How holidays will be divided between parents
  • What the other parent’s visitation schedule will be
  • The day of the month that child support payments will be made (for example, the first day of each month)
  • The date child support payments should end
Ready to draft your Separation Agreement?

Coming to an Agreement on Child Custody and Support

After you have decided how to separate your assets, and you have agreed on child custody and support, you and your partner can move forward with creating a Separation Agreement.
Hashing out the terms of your separation with your ex-partner can be a daunting task, and it can be even more complex when there are children involved. By communicating what is best for your children with your ex-spouse openly and clearly, making decisions together, and including custody and support arrangements in your Separation Agreement, you can help ease the burden of separating on your children and yourself.