DIVORCE AND PATERNITY ACTIONS
Child custody and visitation is one of the most difficult aspects of getting divorced, or splitting up if the parents are not married, especially if one parent wants sole legal custody. Couples frequently come to an agreement pertaining to this issue, either on their own or through mandatory mediation, and if they cannot agree, the court decides for them.
Physical custody (care) is the right and obligation of a parent to have the child live with them.
Legal custody is the right and obligation to make decisions and have full access to information about a child’s upbringing, including school and medical care. In Iowa, joint legal custody where both parents have the right to information and participation in major decisions involving the children is the rule except in rare situations.
In the past, Courts traditionally gave mothers physical custody and gave fathers visitation. The courts now recognize that it is usually in the best interest of children to have as much contact with each parent as possible. This has led to a vast increase of shared physical care situations where the children live about half the time with one parent and half the time with the other
Separated parents face many options about custody and visitation.
Sole custody – An arrangement in which one parent has both physical care and legal custody of a child and the other parent does not have the right to information about the child, participate in decision making and the other parent may or may not have visitation which may supervised or for limited periods of time. This is very rare.
Joint legal custody is one parent having primary physical care of the children and the other parent having visitation. This is the “traditional” method for resolving child custody and care disputes.
Joint legal custody and shared physical care of the children. Here, the children live with each parent 50 percent of the time. This is becoming more and more common and is the solution favored by most judges.
No matter what the court orders about who has custody or if it is shared, the court must find that the custodian is a fit and proper person and that custody arrangement, whatever it is, is in the best interest of the children.
If custody is contested, many courts make a decision on a custody arrangement by determining the best interest of the children, including their age and the closeness to the parent who has been their primary caretaker, the physical capability of the parent as well as their mental health, whether or not there is an issue of domestic violence and,
depending on the children’s age, what the children’s wishes may be and the purpose for their wish.
PARENTING TIME AND VISITATION
When the parents have shared physical care, the child spends about half of the time with one parent and half of the time with the other parent. When and how often the children go from one parent to the other is up to the parties if they can agree and up to the court if they cannot.
One of the most important things to consider when setting up parenting time is the effect on the child. Children are flexible but there is a limit. Generally, a parenting schedule where the child is with one parent for two days and the other parent for three days on some sort of alternating schedule is not in the child’s best interest. Remember, the child is now living in two different households where there are two different sets of rules, two different houses with two different floor plans and potentially two different groups of people. It takes a child time to switch from one household to another and “settle in”. Short stays with a parent means the child never really adjusts to the household before they have to switch again. It also means they are essentially living out of their suitcase. It also means they have to remember which parent they are going home to. That is a lot to ask of a child. It is harder on the parent, but easier on the child, to have the child stay at least a full week with one parent.
When one parent has primary physical care and the other parent has visitation, a visitation plan needs to be set up.
Visitation plans and shared physical care plans should be specific so as to avoid any possible conflicts and avoid confusion. While it is best if both parents can be flexible and work with the other; if they cannot, having a detailed plan in place can avoid another trip to the court to get it figured out.
A visitation schedule depends on the child’s age and whether there is somewhere for the child to sleep during the overnight visits. A typical arrangement, depending on the child’s age, consists of every other weekend usually from Friday through Sunday, one evening each week and every other holiday. However, for a child younger than 6 years of age, it is generally recommended by child development experts that visitation may be scheduled for 2 or 3 days weekly of 2 to 8 hours each visit.
Refusal by one parent to allow the other parent to exercise their visitation or shared physical care time is punishable by contempt and can be punished by fines, jail or in extreme cases, changing the visitation schedule and/or custody arrangements.
Custody and visitation schedules are always subject to change when circumstances affecting the child’s best interests change significantly. The parties can agree to change
custody and/or visitation, or, if they cannot, a Petition for Modification, can be filed. Generally, the party who wants to modify custody and/or visitation has to show the court that there has been a major, unanticipated change in circumstances, that it is in the best interest of the child and if physical care is involved, the that the parent filing the modification can better meet the needs of the child than the other parent.
In almost all cases, even when there is shared physical care of the children, one party will be ordered to pay the other child support and one party will have to provide health insurance for the children. Child support is calculated using the Child Support Guidelines and is generally based on income and the number of children to support. Using the Child Support Guidelines is mandatory and neither party can refuse to pay or accept child support if the Guidelines call for it. Calculating child support is deceptively simple and there are a lot of hidden traps for the unwary. Calculating child support is really best done by experienced family law attorneys.
Child support continues until the child either turns 18, or, up to age 19 if the child has not graduated high school and is a full time student. After child support end, parents who are divorced can be ordered to pay up to 1/3 the cost of post high school education for a student who is enrolled full time. This education support can last until the child turns 22. Costs are based on a Iowa resident attending an accredited Iowa public school, regardless of whether or not the child is attending a more expensive private school. There are limited circumstances where this support cannot be awarded, such as when the child disowns the parent.
Once ordered, if the payer is employed, child support is automatically taken out of the payer’s income. The automatic withdrawal is mandatory. Only if the person is self- employed can the payer send payments in to the Child Support Collection Center.
Iowa does not require an accounting for how child support money is spent.
Failure to pay child support is serious and can result in Contempt of Court charges being brought against the person who is not paying. If the court finds the payer is willfully refusing to pay child support, the court can put payer in jail for 30 days for each month support was not paid. There was a case in Story County where a payer was sentenced to 720 days in jail for not paying support for 24 months. In addition, a payer who does not pay the court ordered child support can lose their driver’s license and any professional license they may have.
One thing failure to pay child support does not do is take away the right of the payer to have visitation with the children. A payer could owe a million dollars in back due support yet still have the absolute right to have visitation or shared physical are. Likewise, the payer cannot stop making child support payments because the custodial parent is not in compliance with court ordered visitation schedule. Denial of visitation is also punishable by contempt.
If either parent has a significant change in their income, child support can be adjusted to reflect the new financial reality. A person who deliberately reduces their income is not allowed to reduce their child support in most instances. If one of the parents marries, the new spouses income is not counted in calculating child support.
THE FOLLOWING APPLIES EXCLUSIVELY TO DIVORCE AND NOT TO PATERNITY ALIMONY
There are basically three types of alimony. Permanent alimony is an allowance for support and maintenance (for example clothing, shelter, food or other necessities) of a spouse. If permanent alimony is requested, it must be proven that there is a need for support and the other spouse has adequate means and the ability to provide for part or all of the need. Permanent alimony is generally reserved for long-term marriages.
Reimbursement alimony is intended for spouses who have supported their partners through years of advanced schooling, and is often paid in a lump sum amount.
Rehabilitative alimony is designed for spouses in shorter marriages who need some assistance reestablishing themselves in the job market and who have a specific vocational plan.
Some of the possible factors that weigh on the amount and length of the support are: Length of marriage
Time separated while still married
Age of the parties at the time of divorce Income of the parties
Future financial prospects of the parties Health of the parties
Fault in the marital breakdown
Alimony is taxable to the recipient and a tax deduction for the payer. In order to qualify as alimony, the payments must meet the following five criteria:
Payment is in cash.
Payment is ordered by a divorce decree.
The payer and the recipient do not live together
The alimony ends upon the death of either party or the remarriage of the recipient
PROPERTY AND DEBT DIVISION
In Iowa all property, whenever or however acquired during the course of the marriage, with the general exception of inherited property, regardless of legal title, is subject to equitable division. “Equitable” does not mean equal. All debt acquired during the course of the marriage is also subject to equitable division between the parties. Property and debt acquired before the marriage is generally, but not always, awarded to the person who brought then property or debt with them. Although unusual, inherited property can also be divided between the parties if that is needed to be equitable. Courts strive for a fair division between the parties and take into consideration several factors to make that determination. These factors are set by statute, and an experienced family law attorney can guide you in interpreting the law as it applies to your individual situation.