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Can I ask for child support without having the court address custody?

Although child support and custody go hand-in-hand, they are two separate issues to be handled by the court.  For example, if you file a motion and you are only requesting child support, the court will only make child support orders and not make any custody orders.  However, at your child support hearing, the Judge will address custody by way of how much time each parent spends with the child at issue. This is because for the court to determine the child support amount, they will look at two factors: 1) Each of the parent’s current incomes, and 2) The timeshare each parent has with the minor child in question.

At a child support hearing, custody is addressed when looking at the second factor when determining the child support amount, by establishing each parent’s timeshare.  Timeshare is the time each parent spends with their child over the course of a year.  The timeshare can be easily determined by looking at the parent’s court ordered parenting schedule, or the parents can agree on the time they each spend with their child.

However, you do not need a custody order or agreement to determine child support.  If there is no court order or the parents are not following their current court order, then the Judge will make its determination as to the timeshare for each parent by the evidence presented.  This evidence can be the testimony of each of the parents, or exhibits presented such as a calendar, photographs, witnesses, etc.

Some things the Judge will not do at a child support hearing is address any custody disputes nor entertain any request to establish or modify custody.  For example, if you have a court ordered parenting schedule where you have an equal timeshare with the other parent, but the other parent does not allow you to exercise your designated days and times, the Judge during the child support hearing will not address any violation of the order.  The Judge will only focus on the actual time you are currently spending with your child, regardless if the other parent is preventing you from exercising any time with your child.  Typically, when a custody dispute is brought up during a child support hearing, the Judge will usually tell the parents to file a motion to establish a parenting schedule or modify the current parenting schedule if they are not happy.  So, do not think that the Judge during your child support hearing will make new orders regarding custody.

Therefore, the simple answer is, “No” you cannot ask for child support without having the court address any aspect of your custody arrangement.  But custody is only addressed to establish one of the factors to determine the guideline child support amount. Therefore, it is important to have a set custody agreement and actually follow it or modify it when needed to avoid any improper child support orders being made in the future based on timeshare.

By: Anna Encinias, Esq., Attorney at Contreras Law Firm.

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