When Mom is the Non-Custodial Parent, She May Need a Family Law Attorney

Non-Custodial Parent California
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Carlsbad, CA – Even in 2018, there is little public knowledge and, certainly, a lot of stigma, when it comes to noncustodial mothers (NCMs). This basically delineates a family situation where, in a dissolution of marriage, the mother and father get shared custody and time with the children, but with one caveat. The father is the one who for one reason or another, court-ordered or willingly agreed to by the mom, is the one with whom the children live. While they may both share academic, medical, and other decision-making regarding the kids, the day-to-day decisions remain with dad. This also means that the mother is required to pay some amount of child support to the father–even if she has never worked. Even a first glance at this situation reveals it to be full of litigation and relational landmines. Today, the number of non-custodial mothers is estimated to be at over 2 million, so this is a trend that is only growing and is worth exploring.

The Needless Taboo of NCM/NCP Status

While many people that hear about a mother being a non-custodial parent (NCP) would assume that legal wrongdoing on her part caused her to lose primary custody, that view could not be farther from the truth. The vast majority of such moms are not drug addicts or child abusers. The trend can probably be attributed to the rise of father’s rights in many states and the financial considerations trumping the importance of the “tender years” idea (the assumption that small children always fare better with the nurturing care of the mother) in court decisions.

Financial Considerations

Across ethnicities and economic classes, separated and divorced fathers make more money per annum than mothers in the same position. Thus, many courts will favor the father if the mother is unable to support economically the kind of financial comfort the children have become accustomed to. At times, when decisions are made outside the court in mediation, mothers may even agree to give up the primary custody to the father if he is better able to provide.

One thing to consider here, is divorced fathers are more likely to be cohabitating with a partner already at the time of divorce or soon thereafter than recently divorced mothers. Thus, they are able to provide some supervision for the kids without paying for as much daycare. This is seen favorably by judges because a two-parent household is considered more stable, but it also puts the father in a better financial position than the mother, who would have to pay for care.

Non-Displacement of Children

Sometimes, if the mother has been a breadwinner for some years during her marriage and the father had taken on the role of caretaker for the kids, at divorce and custody-division time, the court may order the mother to continue providing for the kids and even the ex-husband in alimony. In such a case, the home may also be granted to him and their offspring. The judge simply does not want to disrupt the lives of the children.

This thinking also applies when a divorcing mother cannot afford to live in the same area where her and her husband resided with the kids. Or perhaps, a better-paying job calls her to another city a half-hour away. Thus, she decides to move. Then, the primary custody of the kids may be automatically granted to the father, so as not to force the children to have to relocate and change schools/districts.

The Challenges and Problems

The difficult thing is, even if the decision for the mother to become a NCP was made based on the immediate situation at time of the marriage dissolution, when things change–it can be very difficult to overrule this in the future. If the NCM gets married, makes more money, or even moves closer to the kids and their school, judges are hesitant to change the parenting agreement for fear of disturbing the lifestyle of the child. At this point, it would behoove the non-custodial parent to obtain legal counsel.

For example, let’s consider the example of the mother who was ordered to pay alimony and child support because her ex-husband had been the stay at home caretaker for the children for some time. Maybe he could find no employment, or maybe they didn’t want to use childcare, and she was better suited to work. Some years down the line, that father may get married, have the kids taken care of by his new wife or daycare center, and he may begin work himself. The ex-wife in that scenario will probably still remain the NCM even if she moves into the same city as her kids and their school. Why? The children’s lives are rooted where they grew up. The home they live in with their dad is their usual place of habitation. The mother may get a little more time with them if she arms herself with a good attorney. She may even get to parent 50/50, but the status of custodial parent can be difficult to challenge. Of course, there is a way to settle this out of court, but this only applies to the most amicable of co-parenting pairs.

If you find yourself in a difficult situation needing to modify child support or a parenting agreement as a non-custodial parent, please contact our experienced Family Law attorneys at 1(858)324-5330.

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