One of the most common questions I receive as a family law attorney is: “The mother/father of my child isn’t letting me see them, so why do I have to pay child support?”
In North Carolina, as in many other states, child support is a separate issue from custody arrangements. It’s not uncommon for one parent to withhold custody from the other, leaving many wondering why child support payments are still required in such circumstances. In this blog post, I will explore the legal perspective in North Carolina and shed light on why child support obligations persist even when custody is unjustifiably withheld.
In North Carolina, the guiding principle underlying both child custody and child support decisions is what is in the best interest of the child/children. The state will ensure that a child is supported and has the resources they need to survive even if one, or both, of the parents is acting in bad faith.
North Carolina employs a set of guidelines to calculate child support payments. These guidelines consider each parent’s income, the payment of healthcare expenses, the payment of childcare costs, and the number of overnights the child spends with each parent. This formula aims to provide financial support to the custodial parent to meet the child’s needs. All North Carolina counties have specialized departments, called Child Support Services (CSS) that assist parents in determining and collecting child support. However, CSS does not assist in custody, visitation, or property settlements.
The Child Support Guidelines are not applicable in every case but are utilized in most child support disputes. When they are used, the formulas calculate child support based upon the actual number of nights the child is spending with each parent. If one parent is exercising custody of the child more than 67% of the nights they are known as the “custodial parent.” In that case the other parent, also known as the “non-custodial parent” will typically owe some amount of child support, even if they are unemployed. CSS cases are often resolved much more quickly than custody cases.
Custody decisions are likewise based on the best interests of the child, considering factors such as stability, relationship with each parent, and the child’s overall welfare. Absent a court order to the contrary, separated or divorced parents are left to their own devices to work out a custody arrangement. If they can’t, or won’t, work out an agreement, the parent with custody of the child is under no obligation to allow the other parent to keep the child overnight or even see the child for visits. While emergency orders are sometimes available, they are largely limited to extreme circumstances such as a danger of physical/sexual abuse, one parent fleeing the state, or one parent unilaterally and substantially changing an agreed-upon status quo. Many counties do not allow for hearings on temporary custody. This leaves many parents waiting months, or even years, for a court to make a custody determination.
During this waiting period, the non-custodial parents support obligation remains intact even if the custodial parent is unjustifiably withholding visitation or joint custody. For better or worse, child support is considered a right of the child, and the legal system places a priority on ensuring their financial well-being.
As the only way to lessen a child support obligation is by obtaining joint or primary custody of a child it is in the non-custodial parents’ best interest to file for custody as soon as possible. By the time a child support case is filed or finalized, the non-custodial parent faces a long wait, and significant financial harm, before they get more time with their child and get financial relief from a custodial parent who is acting in bad faith. Taking the necessary steps to fight for custody as soon as possible is typically advisable.
While it may seem counterintuitive, North Carolina law maintains a clear distinction between child custody and child support. Even in cases where custody is withheld, the non-custodial parent is still legally obligated to provide financial support. Navigating the legal landscape can be challenging, and seeking the guidance of a family law attorney is crucial to understanding one’s rights and responsibilities.
Attorney John Boschini is based in the Greensboro office of Law Firm Carolinas. John has a focus on divorce, child custody, and family law matters in the Greensboro, NC area and surrounding counties, including Randolph, Forsyth, Rockingham, Davidson, Wake, and Mecklenburg. If you believe that you may need assistance with any family law or other legal matter, reach out to John today.