Having to go to court about children and families can be a scary experience. Having more information about the law and the process can help reduce that fear of the unknown. Here are ten frequently asked questions related to families and child custody that we hear from clients:
1. When does a child get to decide where he or she wants to live?
In Maine, the legal answer is eighteen. Until the child reaches the age of majority, the parents are still responsible for parental rights and responsibilities for that child, including what the child’s residence will be. Of course, a seventeen year old may have strong opinions and may let you know what they are, and a wise parent of an older teen would do well to include consideration of the child’s wishes when making plans. But the same way we don’t let 14 year olds drive or let 17 year olds vote, before the age of majority, the parents still get to decide where they will live.
2. My child tells me s/he doesn’t want to go to mom’s/dad’s house. Do I have to make him/her go?
The short answer is yes. If the court order says the child is to be with the other parent, you need to follow the order. If there is a problem happening over a period of time, you can seek to modify the court order. If there is an emergency that implicates the child’s safety, contact the other parent and discuss if a temporary change in plans can be made by agreement.
Other emergency actions could include: call DHHS; file an emergency protection order; call the police.
Sometimes the refusing child will not even get in the car. You should use your best efforts to persuade the child to go, and if unsuccessful, call the child’s other parent to try to make alternate plans.
3. I don’t believe the other parent is spending the child support on the child. Can s/he do that?
The parent receiving child support has complete discretion about how he or she spends the child support money. The paying parent has no right to tell the receiving parent how to spend the money.
4. The other parent and I want to do “50/50” with the kids. Can we do that?
In Maine, parents sometimes have a “shared residence” for the child, and they both participate in “substantially equal care” of the child. This means that both parents participate in the child’s life in a substantially equal way: they both take the child to medical or dental appointments, they both participate in the child’s school activities, either one will stay home with the child if the child is too sick to go to school, and the child spend significant time with each parent as part of the routine contact plan. It does not have to be mathematically equal time.
Shared residence works well for parents who live geographically close to each other, and who can interact with each other in a relatively functional way. It does not work well for high conflict parents, or parents who live far apart.
Substantially equal care also means that child support is calculated in a different way. For parents with very different incomes, there will not be much difference in the child support calculation for substantially equal care as it would be if the lower income parent were the residential parent. As the incomes get closer to be equal, the amount of child support is reduced. For parents with equal incomes, the child support will be zero.
5. I’m worried that my ex will file bankruptcy and will not pay me the money that is owed.
Child support and spousal support obligations are not dischargeable in bankruptcy. The person filing bankruptcy still has to pay what was court ordered.
6. I want my child to play football, but my ex says no. Can I sign him up anyway?
Most parents in Maine have “shared parental rights and responsibilities” as part of their divorce or custody order. Shared parental rights is defined by law, and a statement of what that means must be included in the court order. First, take the time to read that. What it means is that both parents must confer and decide together the major decisions regarding children, including where they go to school, what medical treatment they may have, what religion they are raised in, and what extra curricular activities they participate in. One parent cannot make unilateral decisions for the child, so if your ex says no to football, you can’t sign him up over the ex’s objection. If you think about it, this is a good thing, because the ex can’t sign him up for different activities that you disagree with. Try to talk with your ex and come up with a plan that you can both support.
7. I am the primary residential parent, and I want to move out of state for a job. Is that OK?
In Maine, every court order regarding children includes a statement on relocation. You must provide notice to the other parent about the relocation plans, and the other parent can ask the court to order that the child stay in the current geographical area. If you have shared parental rights and responsibilities, that includes decisions about where the child is going to reside. One parent can’t make that decision alone.
8. But, what if it is a really good job and it would be a great place to live and the child wants to go…?
All decisions about children will get made one of two ways: either the parents agree, or a judge decides. If you want to move, and the other parent objects to the child moving away, and the two of you can’t figure out a plan that you can both agree on, you will have to make your case in court and a judge will make the decision for you.
9. How does a judge make that kind of decision?
The judge has to consider what plan would be in the best interests of your child, and the judge must consider a number of factors that are defined by law (you can read them here). These include the age of the child, the relationship of the child to other family members, the stability of the proposed plans, and, importantly, the ability of each parent to make sure the child has access to the other parent.
10. Will my child have to go to court?
Probably not. It is very rare for a child to go to court to testify. Sometimes, if the child’s preference or other information is important, the court will appoint a Guardian ad litem to gather information and report back to the court. But no one wants a child to have to go and testify, so it would have to be a very important reason to have that happen. In 27 years of doing family litigation, I have seen children come to court to testify about divorce and separation three times.
Please let us know if this information is helpful. At the Maine Community Law Center, we are committed to increasing access to justice for Mainers of modest means. Sometimes just some basic information can help make a difficult court experience easier to understand and navigate.