10 Common Illinois Child Custody And Child Support Questions Answered
In regards to custody, visitation, parenting time – what kind of core questions should couples ask before they start talking to an attorney?
There are four different types of significant decision-making that parents need to consider when they are dealing with child custody. Those are (1) Educational Decisions, (2) Health Care Decisions, (3) Religious Decisions, and (4) Extracurricular Activity Decisions. Parents can either make these decisions
Jointly, have one parent make all the decisions, or have one parent have the final decision but require that they check in with the non-decision-making parent prior to any action is taken.
So they need to figure out how they want to handle those four different areas of decision-making as it relates to their child. Many factors go into determining who the decision-making parent should be including Gender, who has the majority of parenting time, and the distance the parties live from each other.
What goes into making custody agreements?
When Parties can agree on decision-making for the child it is a great start. If the parents do not agree, the court will likely appoint a Guardian Ad Litem to help determine who the court should award decision-making authority to.
After determining who should be the decision-maker, it is important to figure out who payment for expenses should be assigned. Each of those four categories can have a different structure for payments. For example, the Father may pay for all of the Extracurricular expenses and the Mother may pay for all of the Education expenses.
A number of different combinations are possible with those categories. In general, what we see is that child expenses are covered in the following three ways: (1) 50/50 between the parents, (2) 100% to one parent, (3) split based on the parties’ income. Whatever payment strategy you set up it is important to take into account the payment style as well. I always recommend electronic payments, they are easy to track and prove that you have or have not received payment. When you pay in cash, it is hard to prove that an expense was paid.
After those things are resolved, it is much easier to begin discussing a visitation schedule.
How are you seeing custody change during COVID times?
Mainly, I’m seeing noncustodial parents upset that they’re not getting as much time with the child who doesn’t necessarily need to be with the custodial parent during school hours. Especially when the custodial parent is at work. For example, Let’s say you have a custodial parent that the child lives most of the time, Monday through Friday, but now the child is doing their school online. Now with COVID and remote schooling, students can check in via Google students, or zoom. Meaning kids don’t necessarily have to live with the custodial parent to go to school.
The noncustodial parent, usually has what’s called a “right of first refusal” which allows the non-custodial parent to see the child anytime the custodial parent is away from the child for more than 4 hours, the noncustodial parent will want the opportunity to see the minor child and have the child do their classes at their house while the other parent is working.
With the custodial parents away, why wouldn’t the non-custodial parent then have the opportunity to see the minor child who isn’t otherwise being supervised?
I’ve seen that as a huge problem. The short answer is that some parents just do not get along. That is one of the reasons you need an attorney who is able to negotiate on your behalf. The other issue that I’m seeing as it relates to COVID, has to do with vacation. There are CDC guidelines and other state guidelines relating to mandatory quarantine periods when someone comes back from a vacation.
If you’re generally switching off for weekends or on a week by week basis for your parenting time, and now all of a sudden, there’s a 14 day quarantine period, a parent may lose a significant amount of parenting time because the other parent decided to take a child on a vacation. Those are two of the big concerns that our office is seeing.
What factors determine the amount of child support that could be rewarded, you mentioned that there was a formula, can you talk more about that?
The government has created a spreadsheet to help calculate child support. It is the Government’s best guess as to what they think it costs to raise a child. Anyone who has kids knows that there are a bunch of other expenses all the time that you can never predict, and also that sometimes you’re just having a good day and you want to take your kid out to eat, well that costs money too. So, the amount the government calculates is the bare minimum line of what the government thinks it takes to raise a child, spreadsheet that they have shows the cost from one child up to six children within a household. It shows income levels from unemployed up to around $30,000 a month.
Hopefully, everyone ends up making $30,000 a month, but more than likely, most parents are going to fall somewhere between the ranges on that spreadsheet. Parents are going to be able to easily find what the government is going to award for child support and what the judge is going to award for child support based on the government’s understanding of what it takes financially to raise a kid.
Other things that can affect the amount of child support would include a parent that has a child from a prior relationship that they’re already paying child support for, or if a parent has maintenance or alimony payments that they’re already making, or if the child has any sort of special needs or special financial burdens which might need to be addressed by the parents, such as medical bills or care providers, or any sort of issues that have extra costs. Again, this spreadsheet gives people a starting point.
The other issue with the spreadsheet that makes it a little confusing for people without attorneys, is it is based on the net income of the parties in total. You need to take both parents’ net incomes, which is the amount after taxes, and when you have that total, look on the spreadsheet to where your support starts, you then find the number of children, and it gives you an amount that you’re supposed to pay. After that, the amount needs to be divided based on your percent share of that net income.
A lot of people will look at this form and think they have a higher payment due because they are not aware that it is based on your percent of the total net income. You may not have to pay the whole value, you may only have a 50% share of that amount. People without Attorneys have trouble making those calculations based on the spreadsheet itself. That is why it is exceptionally helpful to consult an attorney to make sure you know what your share of the amount should be.
After a child support order has been entered, can it be modified? If so, what qualifies as a =reason to modify a child support order?
If you have a child support order entered, that child support order is saved by the court and sometimes sent over to the state disbursement unit, the SDU. The payment of child support can be sent electronically between the parties, or it can be paid through the SDU directly out of someone’s paycheck. That child support amount can and should change based on any significant change in either party’s financial circumstances.
If I was paying child support to an ex-spouse for one child, and my initial payment was $1,000, and then all of a sudden, I lost my job based on my company going out of business or something that wasn’t my fault, I should be allowed to have the court step in and say I have had a significant change in circumstances, I can’t pay $1,000 a month.
I would bring a petition to modify child support to have that amount changed. Most significant changes in your life are going to trigger your right to adjust that child support payment as long as the change, not something you did intentionally. For example, If I quit my job the court is not going to allow me to change the support I owe because I chose to quit.
When a child reaches 18, does that child support automatically stop? Or does the person who’s paying have to put in the effort to stop payments?
A good child support order is going to have a termination date, for when the child support is supposed to automatically stop. Sometimes people forget to put a termination date in there, but as long as the other parent doesn’t try to track you down for more payments after your child turns 18, generally, it’s going to terminate automatically.
There are quite a few things that can be considered termination events that would stop child support. One would be emancipation based on age. Another would be a child joining the military before turning 18. If a 17-year-old joins the military and goes off to boot camp, there is no need to pay child support for them anymore.
If the child gets married, then they’re no longer going to be considered dependent. Sometimes even just graduating from high school and going off to college, then stops child support payments. All of those things can be modifiers that would end child support. Some of them need to be proven by the court for it to be a reason for you to stop child support.
For individuals who don’t have a termination date in their divorce decree, what steps do they have to take to get child support to stop being taken out of their check?
So you need to notify the SDU that the child is no longer a minor that’s dependent on either of the parties and then they’ll terminate the support at that point. It may be necessary to file a petition with the court to end support payments.
What is the best way for someone to go about getting back child support if they are owed money?
That happens quite a lot. It’s a huge issue. That’s going to take place in what is called a post-judgment proceeding, if you’ve already got an order for child support and someone is not paying, and now you need to collect from the other parent who’s not paying child support, you need to do a couple of things.
First, you need to very carefully and meticulously figure out how much exactly they owe, and from what months they owe money. If they’re supposed to pay $1,000 every month, and they are not paying you $500 from January to December of the same year, you’re owed about six grand. You need to be able to prove which months someone paid which amounts because the court is going to ask you to testify to that amount and make sure that they write down which months that an arrearage is owed including interest.
Interest is one of the reasons why it’s so important to remember when exactly you didn’t get paid. Interest can accrue on a monthly basis. If you’re not receiving child support, generally you file a petition for a rule to show cause.
A petition for rule to show cause is a petition telling the court that you want the person who is not paying to explain to the court what their reason is for not paying. Your petition is your way of stating to the court that they have no good reason to not be following the court order that says they owe you a certain amount every month. That process will take a couple of months at the least.
There are many steps, such as making sure that you can get the person served, giving them an opportunity to respond to your petition, and giving you time to prepare for and go to a judge for a hearing. During the whole time that you are dealing with the legal proceedings for a petition for rule to show cause, you’re still able to count those months of child support if you’re continuing to receive less than you’re supposed to. The amount you are owed needs to be very clear to the court.
Something else to note is that when you’re dealing with child support, you should only receive or pay the support through some sort of electronic transfer. If you’re paying cash every month for your child support, nothing is stopping your spouse from saying they didn’t receive that money, and you are going to have a terrible time trying to figure out how to prove they did receive the money.
If an individual has not been keeping up with their child support payments, what can they do if they want to catch up and start paying what they owe?
Generally, the best way to go about it is to still make sure you’re making a payment through some sort of electronic means, so a check is fine. Any sort of quick pay, Zelle, Venmo, those are okay as well. Make sure you detail in the note what it is you’re paying extra for.
What I’ve seen happen before is, if you initially were supposed to pay $1000 a month for a few months, but you paid $500 because you couldn’t pay the full amount based on the change in your income and now, all of a sudden, you have a $2000 arrearage for owed child support that you want to make current. You would pay not only the original $1000 a month but maybe $300 extra.
However, if you just start sending an extra $300 a month, the person receiving the money may say that it was just a gift, and it doesn’t automatically count towards the arrearage. So you still may be sitting on that $2,000 that you owe. You need to make sure that you write in whatever kind of memo section you can that the extra money is an arrearage for support that you know that you have outstanding, and you are trying your best to correct it. You don’t have to put a whole sentence in your memo, but just putting “arrearage January 2021” will save you a lot of hassle later on.
Contact Our Schaumburg Child Custody And Support Lawyers
If you have questions about child custody or child support in Illinois please contact us here or call our experienced Schaumburg family law attorneys at 847-380-5193.