If I file for child custody, can I still get child support? 24 Answers as of September 19, 2011

My ex has been arrested for his 2nd DUI in 3 years and 4th DUI overall. I do believe he is looking at jail time. Right now we have joint custody with primary residency with me. I need to file for sole custody if he goes to jail, will this effect my child support at all?

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Reza Athari & Associates, PLLC | Riana Durrett
A parent is obligated to support their child regardless of the custody status, unless the parental rights have been completely terminated. A change in custody status can have an affect on the child support award, but it should increase in a case from primary to sole.
Answer Applies to: Nevada
Replied: 9/19/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
No it will not. In Texas, child support is established based on the income of the non-custodial parent and JMC or SMC does not affect the amount - with a few minor exceptions. That said, your former husband, if he goes to jail, cannot make any decisions nor can he exercise his visitation while incarcerated. What do you gain by going to court for SMC? You pay a lawyer, I can see what I could gain, but all you get is a title. His incarceration gives you more power than the title. Keep in mind, Custody consist of two parts: Conservatorship (what you want to change) which is the right to make decisions for and concerning the child(ren) and possession which is the right to physical possession of the children at given times. Getting SMC (sole managing conservatorship) gives you all the decision power and again, while incarcerated he cannot exercise his decision power, and has no bearing on support or possession (which again, he cannot exercise while incarcerated). If you file, this will only be a means by which he will plead to the Court that his circumstances have changed, he will be unemployed and incarcerated and therefore unable to earn income and his child support could be reset accordingly. You are basically going to court for a title and giving him a chance to change child support based on his circumstances. Whereas, if you let this alone, he most likely will not realize he could lower his child support to minimum wage during his incarceration, so when he does get out (while locked up, he has no job so you will get no support) the support will remain the same and will have accrued and when he gets a job you can start collecting back support.
Answer Applies to: Texas
Replied: 9/16/2011
Law Office of Michael W. Bugni
Law Office of Michael W. Bugni | Jay W. Neff
In general, child support is independent of custody arrangements. Therefore, your getting full custody should not lower your child support. What may lower it is the father going to jail. In general, in Washington, jail is not considered voluntary unemployment. Therefore, if he is going to jail for a long time, he may be able to have the court decrease the child support for the period that he is in jail.
Answer Applies to: Washington
Replied: 9/16/2011
Vincent J. Bernabei LLC
Vincent J. Bernabei LLC | Vincent J. Bernabei
If he is in jail for an extended time, you probably won't get any child support from him.
Answer Applies to: Oregon
Replied: 9/16/2011
Law Offices of Paul A. Eads, A.P.C.
Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
Him being in jail will. I do not believe there are any jobs for paying support in jail. Of a bigger concern is the safety of your children being exposed to or cared for by a practicing alcoholic.
Answer Applies to: California
Replied: 9/16/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    It should not although he may try to get his obligation suspended while he is in prison. The information contained in this email may be confidential and/or legally privileged. It has been sent for the sole use of the intended recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure, dissemination, distribution, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please contact the sender by reply email and destroy all copies of the original message. Thank you for your anticipated cooperation.
    Answer Applies to: Connecticut
    Replied: 9/16/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    No, it should not affect support issues, unless he brings a motion to change that, and meets the standards.
    Answer Applies to: Wisconsin
    Replied: 9/15/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    Filing for sole custody may have the effect of allowing for a child support increase, due to the fact that you will have more custody time with the child, especially with the father in jail. The father may not be able to pay the child support during the time of his incarceration, but the child support will still accrue while he is in jail. When he is freed from jail he will have to pay the back child support when he returns to work. Many times payment of child support will be a condition of probation or parole. In Louisiana he is not exempt from child support due to being in jail-his criminal conduct does not absolve him of the obligation to support his child.
    Answer Applies to: Louisiana
    Replied: 9/15/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    If you have primary custody, you basically have sole physical custody with the father having parenting time.
    Answer Applies to: Michigan
    Replied: 9/15/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    You should file for custody of your child based on the DUI prior to the time that your ex goes to jail. If you do not bring an Order to Show Cause to modify the support, then the court will not change it. He may request a modification of support when he goes to jail based on the fact that he will not be working while in jail. The custody and the support issues are unrelated matters however and changing one does not automatically change the other.
    Answer Applies to: California
    Replied: 9/15/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    If your ex goes to jail or prison for over 90 days, his child support obligation will likely be suspended during the period of time he is incarcerated pursuant to Family Code Section 4007.5, recent legislation that was effective as of January 1, 2011, but which is slated to be automatically repealed as of July 1, 2015 (unless it is extended). You can seek the sole custody of your child via an Order to Show Cause based on the facts you alleged.
    Answer Applies to: California
    Replied: 9/15/2011
    The Law Office of Cathy R. Cook
    The Law Office of Cathy R. Cook | Cathy R. Cook
    The type of custody does not affect support. Support is dependent upon such factors as the amount of time each parent has the child and whether either parent pays for things for the child outside of support. Your problem with be collecting support if your ex goes to jail.
    Answer Applies to: Ohio
    Replied: 9/15/2011
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    If anything, getting more custody may well entitle you to more child support being ordered.
    Answer Applies to: Pennsylvania
    Replied: 9/15/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    If your ex (boyfriend? husband? baby dad?) goes to jail, you do not need to file for anything. The courts will not likely award sole custody, but if you have the money for legal expenses, nothing can stop you from trying. What you do need to do is file a motion to modify, restricting your ex to supervised visitation. Putting your daughter in a car with him behind the wheel could be considered child endangerment in some quarters. See a domestic relations attorney near you for further information.
    Answer Applies to: Ohio
    Replied: 9/15/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    If he goes to jail, he obviously will not be sending any checks while he's there.
    Answer Applies to: Georgia
    Replied: 9/15/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Yes. Regardless of what kind of "custody" arrangements exist, both parents remain financially obligated to support he child. The only questions are how much and who pays.
    Answer Applies to: Colorado
    Replied: 9/15/2011
    Law Office of Rhonda Ellifritz | Rhonda Ellifritz
    I am not sure why you think asking sole custody would change the support. I will tell you that in general, if he is in jail, he isn't making any money - that will affect it. You having sole custody does not affect child support other than you have more time with the child, which means that you need more money to raise him. But again, he is in jail. To put it in simple terms, if you are awarded $100 dollars, and he doesn't have it, you aren't going to get it. You could spend money hiring an attorney and going after him, but it would be a waste of your money. You may want to talk to your local Department of Child Support Services and see what they can do for you. That would not cost you anything but your time.
    Answer Applies to: California
    Replied: 9/15/2011
    Law Office of Cassandra Savoy
    Law Office of Cassandra Savoy | Cassandra Savoy
    Why are you stressing about this. If he is in jail, you already have sole custody. Don't create a problem you don't have.
    Answer Applies to: New Jersey
    Replied: 9/15/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    The less timeshare a noncustodial parent has with children, the more their child support obligation, depending of course on the parties' respective incomes.
    Answer Applies to: California
    Replied: 9/15/2011
    Law Offices of Laurie Peters
    Law Offices of Laurie Peters | Laurie Peters
    This response is for informational purposes only, and does not form an attorney-client relationship, nor is it to be considered legal advice. In California child support is based on several factors which include, without limitation, how much the child/ren spends with each parent and how much each parent earns. Both parents are responsible for the support of their minor children. Seeking sole custody does not mean you cant collect child support. However, if your ex is in jail he will not likely be able to pay support. You may want to seek the advice of an attorney in going forward with custody. If you cant afford one, there should be a self-help center to help you with filing the proper paperwork.
    Answer Applies to: California
    Replied: 9/15/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    What will effect your child support more than anything is the Father's income, I assume, will be lower while he's incarcerated.
    Answer Applies to: Washington
    Replied: 9/15/2011
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    Joint vs. sole custody doesn't affect child support, but if his parenting time is reduced as a result of his incarceration (or other modification), that may be cause to modify the child support as well.
    Answer Applies to: Arizona
    Replied: 9/15/2011
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