Custody and Child Support
By an older mama ally
Before the unexpected pregnancy that made it all a reality, I thought about having kids in what I thought was a pretty realistic way. I even figured that there would be a good chance that I’d be a single mother, and felt prepared to deal with that. The custody battle was a different matter, and never once in all of my musings about how many kids I might want and how I’d parent them did I consider that I would one day be sitting in a court hoping that the judge would let me keep my son.
My relationship with my son’s father was rocky and dramatic for years before I became pregnant, but I thought that by his second birthday, we had worked through a lot of our issues and I felt proud that we were able to co-parent in such a harmonious way that we could even all hang out together, in the interest of making everything as easy and comfortable as possible for our child. I was living in the same state as my son’s father after moving there temporarily with my infant, so that I could afford to work part-time in a cheaper city and save some money to return home to California. My son’s father was aware of this and we had discussed how it would work and I had made every attempt to include him in the planning process so he would feel assured that I had no intention of cutting him out of his kid’s life after I moved back. After informing him that I wanted to move to Oregon to pursue a degree program not offered anywhere around us, we started negotiating all over again. At 6:30am on a Saturday, I was awoken by a knock on the door and served a custody lawsuit.
I had previously agreed to put everything on paper, add the father to the birth certificate and file the visitation and child support agreement that we had worked out, so I felt incredibly betrayed. I broke down. It was not what was supposed to happen. Friends and family assured me that he had no grounds for trying to win physical custody, and they were right, but their words sounded hollow when it was even in my realm of possibility that I could lose my baby. I have since seen countless mothers go through this same process and always want to gently suggest that while getting along with the babydaddy is swell, having an agreement signed and filed is better than blind faith that it will always be amicable. It seems like such a predictable process…the mama doesn’t want to rock the boat, things are going well, he usually pays on time and shows up when he’s supposed to. Gradually that starts breaking down, for any of a thousand reasons that it could. He wants more parenting time, or starts intruding on mama’s time with the kid(s), gets a new girlfriend and wants to impress her with his familial inclinations, or maybe he’s way at the other end of the spectrum and is completely absent, financial contribution and all. On the parenting discussion board I frequented, there was much agonizing of this variety. Should they have to pay if they’re not involved? Should they be on the birth certificate? Did they have to be? Each mama’s situation is unique and has its own issues and decisions to be made.
Whether you and your child’s other parent are prepared to co-author and sign a parenting plan to be filed with the court or he’s nowhere in sight and you’d like some of his paycheck to go toward the support of his child, you need to be informed of your rights, what resources are available to you, and what steps you need to take to achieve the best outcome for your child.
The first thing I did was read all of the family law statutes for the state I was in. They vary wildly from state to state, and how each court chooses to interpret them or assign priority of deciding factors is a different matter. You can access your state’s statutes by searching nolo.com, an online legal resource center for self-help law. I was being sued for primary physical custody, meaning that my son’s dad wanted our child to live with him and have visitation with me, and for me to pay him child support. I was livid, but I didn’t have time for that. He had a lawyer and I didn’t. His family would undoubtedly continue to fund his legal case indefinitely, while I tried to scrape together enough money to pay a paralegal to prepare response paperwork on my behalf. I had to essentially become a makeshift family law attorney in order to adequately represent myself. After turning over every rock in sight to ask for money from every possible source, I came up with enough for a small attorney retainer. A retainer is like a deposit for legal services and can run from around $1,500 to $3,000, with a lot of variation. Everything your lawyer does for you is broken down into billable hours and they charge you from your retainer money until it’s gone, at which time they will begin to bill you or request another retainer. Have your paperwork and answers organized and ready to go and keep the chit-chat to a minimum. Every minute you spend in your attorney’s office or on the phone with her looking for a document or asking how her family is costs you money. Don’t unload the emotional crap on your lawyer…a therapist is cheaper and your lawyer will not stop the clock to attend to your emotional needs. My lawyer attended one court date with me and abruptly closed her practice shortly after, leaving me with the remains of a retainer that would not have been enough for another lawyer, and a looming child support hearing.
Accepting that I was on my own again, I took part of that money and bought books, some with straight legal info, some with strategy suggestions and the lowdown on how courts treat mothers, and some with examples of forms and documents I’d need. All of the self-help books stupidly assumed that I would be getting a lawyer and informed me that it was likely to cost me $10,000. None of them gave suggestions for what to do if you did not have $10,000. None of them mentioned paternity suits or much about relocation, which was the primary issue in my case. All of them assumed that my custody battle was taking place as part of a divorce. My case was a lot more complicated than the scenarios that had been assigned to me by the authors of all of the books. I started getting angry. My friend suggested that I write a book entitled Custody Solutions for Bastard Children. We still laugh about it, but there were really no resources for mothers like me; mothers like most of the mothers that I know. Even without a lawyer, fees added up. $80 to file this, an undetermined amount to pay an attorney ad litem, assigned by the court to represent my son, who ambled through his second year while I stayed up every night planning my case and furiously filling up notebooks with plans and any remembered information that might help. I wondered about the mamas who didn’t have the required $80 filing fee or didn’t understand what they were supposed to do with the paperwork. Did they just lose their kids? I found that the answer was sometimes yes, especially if the father had money. The statistics were horrifying, and I snap at people who make ignorant comments about the courts choosing custodial parents with bias for mothers. It turns out that it’s because the dads just don’t usually ask for custody. When they do, they have a pretty good chance of getting it, especially the longer the case goes on. I guess judges are impressed with fathers who show up, as they are apparently a novelty in court. I wondered about those other mamas a lot as I testified in my head at 3am. I’m educated, have internet access and had a little bit of money that I was able to pull together for the occasion. I made that case my primary job. I made too much to qualify for legal aid, and the maximum monthly income allowed for assistance in my state was less than my rent.
If you can secure the services of an attorney, with borrowed money, your own, or through any local legal aid programs, do so. Get the best lawyer you can, through recommendations or legal referral services such as those offered by some regional chapters of the National Organization for Women. If you can’t afford a lawyer, try to at least get a consultation with one or two. Some offer free or reduced consultations, and even if you have to spend $100, you will get valuable information and perspective about your case.
Approach your case as if it’s the most important job you will ever have. Be professional, and have your shit together. Keep all of your documents and copies in the same place, record and date as accurately as possible all incidences or details of potential significance. Start a log for dates and content of all conversations, scheduled visits and interactions with your child’s father. Put all of your personal issues with him on the back burner…they don’t matter right now and will obscure the issues related to the case. Outline your case before you see a lawyer so that you can easily and succinctly describe your situation and maximize your very expensive time with them. Be honest about any information that could be brought up in court that could negatively affect your case. Ignoring potential issues that you don’t want to discuss will make you unprepared to deal with them. Create a timeline of events that you know will take place and be prepared to act and react as necessary. Once initial documents are filed with the court, the filer becomes the petitioner and the other party is the respondent or defendant.
The court Clerk can be an invaluable source of information for knowing which paperwork to file at what time, and how. Some papers have to be served to the other party, through an independent process server or sometimes an official of the court or a sheriff. Independent process servers are the most reliable for timely service and can be the most expensive, but make some calls and you’ll find variation in fees and can choose the least expensive. Other documents have to be notarized and/or copied many times, to send to your child’s father or his attorney, file with the court and possibly directly with the judge’s office. Make sure you know what all of your paperwork means, what response is required from you, your options for responding, how the documents have to be formatted, and who you need to give them to. The Clerk can help with the appropriate flow of documentation, and you can pay a paralegal less than an attorney to draft official court documents that are in the correct format, if necessary.
Many courts maintain some kind of self-help center, where you can get packets of documents that you might need, as well as instructions for proceeding as a pro per, or self-represented petitioner or respondent. Get copies of all of the blank paperwork, even if you think you don’t need it, to familiarize yourself with the format and process. In addition to legal aid services and self-help resources, some law schools offer free legal clinics where third-year law students can assist you under the supervision of an attorney. Make sure you’ve exhausted every possibility for free or cheap legal assistance. Even if you can’t afford a lawyer, getting the advice and perspectives of several legal professionals will help you to decide how you want to proceed with your case and give you a better idea of what to expect, the likely outcome and any potential problems you should be prepared for. It also doesn’t hurt to seek out information about your judge. I wasn’t able to determine how my assigned judge had decided previous relocation cases, but I did locate some other information that would have benefited me at trial.
Since each state’s laws and procedures vary so much, it’s impossible to give a comprehensive chain of events for a contested custody suit, but there are some general commonalities. A custody suit can consist of various issues and components, which can be handled by the court separately or combined. You should learn the process that is observed by the courts of your state regarding separation of custody, visitation and child support issues. All of the primary issues related to the case should be stated at the outset. Making drastic changes to your stated case can make you appear manipulative or possibly dishonest to the judge, as they will wonder why you didn’t name all of the issues initially, if they were important factors. My case consisted of a paternity suit, a petition for primary physical and legal custody, and a request for orders of visitation and child support. The papers I was served named a deadline for my response and a “show cause” hearing date. I filed and served corresponding papers, naming the relocation issue, not contesting the paternity suit, and requesting a temporary order for sole custody with visitation and child support. Ask for what you want, not what you will accept, so you have some room for negotiating later. While it may be unlikely for you to get sole custody, it is impossible if you don’t even ask. We were assigned a court date to show cause that the case had merit, at which time I stated in court that my son’s father was the biological father and denied other requests he made, like additional parenting time. It is very important that the court sees that you are making an attempt to facilitate a relationship between your child and the other parent, unless there are abuse issues or you don’t feel that your child is safe with her or his father for any reason.
If your child’s father is abusive or you feel that your child is unsafe with him, make sure that your attorney is familiar with how to deal with domestic violence situations, or contact a local DV hotline for assistance. Throughout the process, there were several opportunities for me to designate that the relationship was abusive, and my case would have been handled differently. My son’s father was not abusive, and I was genuinely interested in encouraging their relationship and had consistently allowed them ample time together, so he would have had no cause to accuse me of denying him access.
Be consistent with visitation and don’t give the other side any reason to complain to the court. Document all visits and note if the father was late or otherwise violated the boundaries of your defined visitation time. Each jurisdiction will probably have a publication or posted guidelines that outline recommended visitation, according to the age of the child and other factors. My son was already spending more than the recommended time with his father, so I didn’t feel threatened by his request for more. Many of those kinds of requests are standard strategies, so that the judge will perceive a dedicated and invested parent.
A contested case will theoretically end up in trial, but there are many steps along the way and fewer than 5% of all cases make it to the trial. You may have a trial to first establish temporary orders, since the final trial could be years away. In response to the suit I was served, I filed for temporary orders so that I might be allowed to leave the state before the trial. Also, temporary orders set a precedent and the status quo. There is a good chance that the final order will be much like the temporary orders, unless new information is introduced that drastically alters the child’s potential living situation.
Behave like June Cleaver during your case. Anything you do can be brought up as an example of poor parenting, often unfairly, such as your age, relationships with new partners, whether you work or go to school, what kind of home you live in and who else lives there, your ability to financially support your child and to be consistently present, alcohol or drug use, other children, and anything else that can be brought up in court as an example of how you are not the best custodial parent for your child. When I was working, the opposing attorney tried to use that against me, saying that I didn’t have as much time to give my son as his father, the hardly working musician. When I quit my job and went back to school, I was accused of doing so to increase child support and my ability to financially support my son was brought into question. We attended a child support hearing, with an officer of the court who then made a recommendation to the judge that was signed and entered. The court officer assigned me income I no longer made and it went into the formula for child support, since they said it was my own fault that I quit and I had the potential for making that much money. That I was attending college was not an acceptable reason for leaving my job.
The laws don’t necessarily matter. The whole child support hearing and subsequent recommendations were contrary to the statutes and I was not happy with the outcome. My son’s father should also have been assessed potential income if I was, since he was considered underemployed by the standards of the court, but it was an important lesson to learn. I was sent the recommendation for child support, signed by the judge, and missed the deadline to appeal it, as it was stated nowhere in the paperwork I received. In addition to reading all applicable statutes and guidelines about child support in your state, you can probably find an online calculator, which is the same formula theoretically used by the courts to determine monthly support. The factors that determine child support vary quite a bit from state to state, ranging from a flat percentage of the non-custodial parent’s salary to a formula based on the income of both parents and time spent with each. As was the case of many other mamas I spoke to, my son’s father was mostly paid under the table and did not report a lot of his income as a musician. I was able to designate that a small amount be added during the support hearing, for shows that he played and did not claim on his court-mandated financial statement, but it’s hard to prove illegal cash income. On the other hand, many people who receive under-the-table cash income don’t want others talking about it in a court of law, so they may take that into consideration when deciding how loudly they want to protest financially supporting their child.
A very important thing to keep in mind is that while you have a right to receive financial assistance from the other parent, to support your child, the money has nothing to do with visitation. The other parent is not paying to have access to their child – it’s their right, and withholding visitation because the father fails to financially support his child will piss off the judge and say to them that your interest in facilitating a relationship between your child and the other parent is dependent on money and not the best interest of the child. Keep those issues separate.
With the hearing to show cause and child support assessment behind us, mediation was next. You can request mediation any time, or it might be automatically assigned. Your mediator may be an officer of the court, or an outside party that you have to pay. Requesting mediation can give you the appearance of being amenable to compromise, and how you appear to the judge is everything. The intention is that having an impartial party sit down with the parents will lead to a compromise on some or all of the contested issues. You may disagree about child support but be able to agree on an acceptable visitation schedule, which would at least be some progress. In my case, the court-appointed mediator (whose name, I shit you not, was Donna Reid) asked my son’s father under what conditions he would be willing to consent to my move out of state with our son. He said none. I had the same answer when she asked under what conditions I would be willing to remain in the state, and our session ended after ten minutes. She submitted a report to the judge that stated that we could not agree, and a trial date was set, to establish temporary orders for custody, visitation and relocation.
I met with more lawyers and tried to raise more money. It’s very difficult to represent yourself during trial, since there is a staggering amount of groundwork to do, including collecting depositions and evidence, and preparing your case. I wrote and rewrote the issues of my case, with several contingency plans for escalation, depending on how nasty it got. I didn’t want to introduce accusatory evidence, but I had to be prepared to bring in whatever might help my case, and there were a few things that I saved for the worst-case scenario, and thankfully, never had to use. Several weeks before the trial, it became clear that there was no way I could afford an attorney to represent me at trial. It would have been a minimum of $5,000. I considered my options and pared my requests down the bare minimum, preparing to offer a settlement. Of course, the most important thing was that my son lived with me, and I had no reason for concern that his father would be assigned primary physical custody. I had cared for him since birth, and his father was not refuting my fitness as a mother. The court likes to maintain the status quo, so there was little chance of my child being removed from my home to live with his father without substantiated allegations of abuse or neglect. The courts hear countless accusations from angry parents who are eager to prove that the other parent sucks. If the accusing party cannot prove their allegations or wastes the court’s time with relatively unimportant evidence, it can tend to make them look vindictive, dishonest or petty, which will just anger the judge and help you. Courts dislike being used as a forum for a couple’s squabbling, especially when the well being of their child is the ignored issue.
Definitions and criteria vary a lot, so check your state’s laws and make sure that you’re clear on what you want and what you will accept, and why. Different states take different positions on sole vs. joint custody. Many states now default to joint custody, unless either parent is abusive, negligent or absent. Sole custody is usually preferable, because it gives you exclusive rights to make decisions about your child’s healthcare, education, travel and other things. Joint custody generally means that you share those decisions, with one parent designated as the primary physical custodial parent and both contributing to decisions and expenses.
During any part of the legal process, you can elect to offer a settlement to the other party rather than move forward with a trial. I considered my options and my bank account and knew that I couldn’t financially afford the trial or emotionally afford for the case to drag on for another year. Health issues demanded that I move from the hot climate I had been stuck in since the court had ordered me to remain in the state for the duration of the proceedings. I considered all of the issues in my case and decided what I could compromise on. With several weeks remaining before the trial, I submitted a settlement offer to the opposing attorney. I offered to move back to the city where my son had been born, which was much closer than the city I wanted to move to, and joint custody with generous visitation. By that time, I had saved enough to retain a new lawyer, so I hired someone to negotiate the terms of the settlement, or go to trial, depending on the response. We went back and forth over a number of points and signed an agreement the day before the trial was scheduled to begin. My son’s name was changed; a non-negotiable demand of his father, and I was finally free to move, with a far more liberal visitation schedule than I felt was good for our son, and not much child support. I compromised a lot. More than I wanted to, and the visitation was rough for my son for months. He had never been away from me for more than an overnight visit and suddenly would be gone a week out of every month. We have since adjusted, but I firmly believe that that amount of time is too much for a child who was just turning three.
It’s important to clearly define to yourself at the outset which issues are most important to you and what you will accept as compromise. The legal system can be intimidating and is definitely hard to access without money, but don’t let it, your child’s father, his lawyer or anyone at the court intimidate you. It’s easy to be frightened by threats and even remote possibilities, but stick to what you believe is best for your child and your family. Whatever the individual details of your case or your financial resources, your biggest asset is information. Not being able to pay a lawyer to give you a synopsis of that information or speak on your behalf doesn’t change the content. Seek it out, using whatever resources you have, and ask for help wherever it may possibly exist. Act in the best interest of your child, not because the court demands it, but because this is all about them, not you. Involve your child as little as possible in the proceedings. Give them age-appropriate information about what’s going on and don’t ever give them any reason to feel guilty or think that they are the cause of all of the stress and activity, even if it means waiting until they go to sleep to sob in the bathroom for an hour every night. Consider seeing a counselor to deal with the multitude of emotional issues that inevitably surface in such a situation, and consider seeking help for your child as well. Talk to other mamas who have gone through it. Keep a journal. Take a lot of baths. Hug your kid a lot. This too shall pass.