In this article, you will learn:
- How custody is determined through a child’s best interest
- When a child may have a say in the custody decision
- How and when child support is calculated and awarded
While kids are not permitted in the courthouse, and they’re not permitted to testify as witnesses, there is a procedure that you can file a motion with the court and ask the court to interview the children. There is training done amongst the judges so that they know how to do that, and, in some counties, they actually have family court services people who are trained social workers who conduct the child interviews which are done outside the presence of the. So, the statute gives that discretion to the judge, and in my experience, typically around age 14 is when what children say in interviews tends to have more of an impact. The problem with little kids is you can’t really get an answer from a little child about what they would like to see is a custody arrangement because you’re at a development stage where they are loyal to both parents, so there isn’t really any basis for that child to express much of a preference unless they’ve been coached.
But each judge is individual in their exercise of that discretion. I have some judges that are willing to interview children at ten or twelve, and they’ll take that information and determine what weight they’re going to give to it. But the preferences of a child are one of the statutory criteria that a court can consider in determining what’s in the best interest of the child. There’s a list of eight, plus there’s an add-on in Idaho; the presumption is that regular and frequent contact with both parents is in the best interest of the child, which forms the starting point for a court in making a custody determination. There is, however, a circumstance I’ve had come up in a few cases where that presumption is overturned and that’s in the case where there is a habitual perpetrator of domestic violence involved. The Supreme Court said that it must be more than two instances, but they haven’t said that there’s a magic number that you can prove that gets you there, but I’ve actually had cases where I’ve had to prove that the other parent was a habitual perpetrator of domestic violence which has reversed the ideal of joint custody in the case. That can be wild card override in cases where that’s present. Still, the court looks at the wishes of each parent, which often cancel each other out because the parents have opposing views on what the best custody arrangement is for the child.
The court looks at the character of parents and their behaviors, although it is not one of the primary considerations in my experience. The two statutory factors the court considers most strongly in custody evaluations and determinations is the child’s adjustment to their home, school, and community, and the need for continuity and stability in the life of the child.
When Child Support Will Be Awarded And How The Amount Calculated
Child support can start at one of two points. Whether it’s a divorce or whether it’s a custody modification, Idaho law allows the court to start child support the month after the filing of the petition the new rate, or the court can do it the month following the entry of the judgment, which is a matter of negotiation and argument. But ordinarily, when a petition is filed, the child support is going to backdate to the month after the filing in some courts, and the other courts prefer to start right off-the-bat so they will start it the month following the entry of the decree.
Regarding how it’s calculated, we have the Idaho Child Support guidelines which are incorporated into our family law rules of the procedure, and have been for the last 25 years at least. The state has found that, for the most part, amounts spent on children are relatively stable percentage wise across income levels until you get to the very wealthy folks, and then the amount spent on children as a percentage tends to be less. So, they’ve formulated these child support guidelines on an annual or biannual basis to make sure that the data still supports the guidelines. Support is calculated by determining the custody arrangement for the children with each parent in terms of the number of overnights spent with that parent. That creates a percentage of custody with each parent.
You then look at income as it’s defined in the child support guidelines for each parent, and you determine what their income is for purposes of child support guidelines. This includes many considerations, but you add up all that income for each parent to come up with a total amount of child support. There are three computer programs available to calculate these factors into a final number. So, if you’re in a modification, and the parents have been divorced for 10 years and one parent has three more kids, they don’t get credit for those additional children because the court guidelines are based on the parent’s obligations to these children, and they anticipate that people will use reason in terms of the number of children they produce.
They also have adjustments for who pays for the medical insurance coverage for the children. The child support guidelines provide for a sharing of the child tax credits that are available at the state or federal level between the parents in proportion to their shares of the guideline’s income and other expenses such as work-related daycare expenses and related matters. So, you plug all of those factors into the program, and you come up with a child support that’s based upon the particular custody arrangement. Additionally, there are things you can do to try to lessen what can be oftentimes a very large number from child support by manipulating who gets the exemptions and what the custody arrangement looks like.
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