23 May 2013
- Written by Carlee McCullough
Whether you have a multi-million dollar business or a minimum wage job, divorce can put your income at risk when it gets down to child support. Although the distribution of property and alimony payments may be governed by a prenuptial agreement, child custody and support will be solely determined by the court.
According to the Tennessee Code – Title 36, Sections 36-6-106, the court may award custody to either parent, or to both parents (joint custody or shared parenting) based on the best interests of the child. The court will consider the following factors:
• The love, affection, and emotional ties between the parents and the child;
• The ability of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;
• The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
• The stability of the family unit;
• The mental and physical health of the parents;
• The home, school and community record of the child;
• The preference of the child, if 12 years of age or older. The court may also take into the consideration the preference of a younger child upon request, but it will not be given as much weight as that of an older child;
• Evidence of physical or emotional abuse to the child, the other parent, or any other person;
• The character and behavior of any other person who resides in or frequents the home of a parent and the person's interactions with the child;
• Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child; and
• The parenting abilities of each parent, including their willingness to encourage a close and continuing relationship between the child and the other parent.
Prior to the issuance of a child support order, the mother and father have the option of determining paternity, if there is doubt. As a practicing family attorney, I strongly encourage a paternity test simply for confirmation if the parties are not married.
Legal paternity must be established prior to obtaining a child support order from the court. The Tennessee Department of Human Services (DHS) can help determine paternity in instances where a child is born out of wedlock or in instances where paternity is in question.
DHS child support guidelines usually determine child support, and child support obligations cannot be contracted away. Any deviations from the guidelines must have court approval. The guidelines are based on the "Income Shares" model in which both parents' combined income is used to determine the support due for the child.
The parent's share is determined in proportion to their income. Among other factors considered are: other children in the home, other child support obligations and health insurance coverage for the child.
Traditionally, the primary residential parent (PRP) receives the child support. The PRP is typically the parent who the children live with the majority of the time.
During the course of 18 years of a child's life, child support orders may need to be adjusted or modified. Jobs change, income fluctuates and additional children are born. However, to qualify for a modification in child support, there must be a significant change in the amount of monthly child support.
Once the court has established child support, it is imperative that the obligation be met. Consequences are swift and severe for the non-compliant parent, with DHS helping to enforce court-ordered child support.
The remedies that may be used to encourage payments include: income withholding, liens on property, license revocation, denial of passports and reporting to the credit bureaus for past due payments.
NEXT WEEK: Property distribution and alimony