Frequently Asked Questions
1. What is the difference between “legal custody” and “physical custody?”
“Legal custody” means the right to participate in major decisions affecting the minor child, such as decisions about the child’s schooling, major medical procedures, and religious upbringing. “Physical custody” is what most people would ordinarily think of when hearing the word “custody,” i.e., where the child resides and the division of time between the households of each parent.
2. What does “joint legal custody” mean?
“Joint legal custody” means the right to be consulted about major decisions affecting the minor child and the right to receive information and documents from third-parties (such as schools and medical service providers). In most cases, parents are awarded joint legal custody. “Sole legal custody” is usually obtained only upon a showing of unfitness on the part of the other parent (perhaps founded upon a drug or alcohol problem or some significant criminal conviction) or upon a showing that the other parent has not been involved in the life of the child.
3. What does “joint physical custody” mean?
“Joint physical custody” is defined by Idaho statute as “an order awarding each of the parents significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties.” It can, but usually does not, involve an equal sharing of time between the parents.
4. How is child support calculated?
In most instances, child support is calculated pursuant to the Idaho Child Support Guidelines, using the gross incomes of both parents. “Gross income” is defined broadly under the guidelines and can include funds that might not be considered income for tax purposes. There are two different formulas used, depending upon the division of time between the two parents. The basic amount of child support is then adjusted in light of the cost of any health insurance coverage provided by one parent for the minor child and then again in light of which parent is awarded the right to claim the tax exemption for the minor child.
5. Is overtime pay included when calculating child support?
Sometimes. There are several factors that the court looks at. Generally the most important is whether the overtime is voluntary or is required by the employer.
6. What happens if the other parent disobeys the custody, visitation or child support terms of an order?
In general, the remedy is to ask the judge to hold the other party in contempt of court. There is a formal way to do this and there are particular requirements that need to be observed in preparing contempt papers to submit to the court. The other party must then appear and explain why he or she did not pay child support or failed to return the child as scheduled, or explain away to the judge’s satisfaction whatever the alleged violation may be. If the judge finds a party in contempt that party can be ordered to serve up to five days in jail for each violation (but up to thirty days in jail for each month of failing to pay child support), to pay a fine of up to $1,000.00 per violation and to pay the other party’s attorney’s fees and costs incurred in prosecuting the contempt.
7. Can custody and child support terms be modified?
Yes, upon a showing of a substantial and material change in circumstances. The change or changes in circumstances must logically support the requested change.
8. I got married two days ago and it was a big mistake; can I get an annulment?
Believe it or not, this question, in more or less the form presented here, is asked fairly frequently. The answer is “No” in the sense that an extremely brief passage of time since the marriage ceremony is irrelevant to whether one can obtain an annulment. The requirements for an annulment are very narrow and precise, for example, the other party is still married to someone else, or the party requesting the annulment was not competent to enter into the marriage. Annulments are rare. However, the person who experiences this kind of morning after the marriage ceremony remorse can file for divorce.
9. What kind of residency requirement does Idaho have for divorce?
To be able to file for divorce in Idaho, a person must be a resident of Idaho on the date of filing and have been a resident for at least six weeks at that time.
10. Do I need to prove fault to get a divorce?
No. These days most divorces are granted on the basis of “irreconcilable differences,” which is the term that Idaho uses for its version of a “no-fault” divorce concept. This essentially means that if one party to the marriage is determined to obtain a divorce then a divorce will occur and the only question is when. Many times even when one party has one or more of the traditional grounds for divorce (e.g., adultery, extreme cruelty, habitual intemperance, etc.), “irreconcilable differences” might still be preferred in the interests of timing, expense, the reality of having to deal withthe other person while the children are minors or other reasons. The option to seek a divorce on one or more of the traditional grounds remains available, however, if the factual basis is there and can be proven.
Note: This material is intended only as general information and not as legal advice for any specific situation. As to any specific situation, consult an attorney.
For a free initial consultation with Kevin J. Waite, call (208) 449-1163, or contact me online.
Kevin J. Waite, P.C.
424 Sherman Avenue, Suite106
Coeur D'Alene, ID 83814
Phone: (208) 449-1163
Toll Free: (877) 415-9021
Fax: (208) 667-8630
