Custody and Child Support of Older Teenagers
October 15, 2018 By Katie Carter
Under the law, a child magically becomes an adult on their 18th birthday. But what does that mean, and how does it impact custody and visitation? When you have an older teenaged child, what options do you have? What does the court allow?
These are all good questions, and, if you're the parent of an older child, you've probably found that a lot of the information related to custody and visitation relates to much younger children. You're probably not nearly so worried about daycare, for one thing!
In many ways, it's often easier with older kids. They don't need babysitters. They can drive, so some of the back and forth for parenting time isn't such an issue. In many cases, they have their own ideas about what they will and won't do, so sometimes that removes some of the pressure created by a court order and having to enforce a visitation schedule that the child may prefer not to follow. (Though, technically, I have to advise you that, even for a much older teenaged child, the court order still governs, and you could potentially be found in breach of that order if you've done anything to encourage the child not to follow it.)
But it's not all unicorns and rainbows. Kids at that age are difficult. Maybe even more difficult than they were when they were toddlers. (Notice I say maybe, being the mom of a toddler myself.) And there are certainly some issues when it comes to custody and visitation that moms of kids at around this age need answered, especially if there continue to be issues in their custody cases.
How long does the court have jurisdiction over a child?
A child is a child – and therefore subject to the jurisdiction of the court – until he or she turns 18. At that point, he or she is legally an adult, and the court has no authority to enter orders on behalf of that child.
At that point, there's really nothing you can do as far as custody and visitation is concerned. As it relates to holiday breaks from college or even how to pay for medical insurance, you're kind of on your own. You and your child's father will have to agree, moving forward, because the court will be no help to you.
I met with a woman the other day who had filed an appeal from juvenile to circuit court. The child was 17 at the time, and would be 18 before the case was heard in circuit court. I told her that there really was no case here; despite whatever she might still want to have happen in her case, no court could have authority over the custody and visitation of a child that is older than 18.
But what about child support?
Child support is a different animal. At least, a little. Under the law, child support is payable until the child graduates high school or turns 19, whichever occurs soonest.
But how can that be, when I literally just said that the court doesn't have the authority to do anything after the child turns 18?
I'm glad you're listening! The court DOES have the authority to award child support until the end of this statutory period.
The court DOES NOT have the authority to award child support after the child turns 18. So, if you've been to court prior to your child's 18th birthday, you can get child support established, and that child support will continue as long as the statute allows (so, either until the child turns 19 or graduates high school).
If you have not been to court before your child turns 18, you can't ask for child support. After 18, the court has no authority to order child support. The child is not a child, and no support can be awarded.
I think that was the main bone of contention for the woman with whom I met. She didn't understand why the statute seemed to be contradictory. It really isn't, though I can see her basic point: that she's still incurring expenses on behalf of this child, and child support through high school is still appropriate. It's just a question of what the law allows. The law means that the judge can continue child support until the statute says it stops, but the law doesn't allow the judge to enter a child support order for a legal adult.
It's an issue sometimes, too, with disabled children, particularly if their parents get divorced after the child turn 18. As you're probably aware, 18 years old doesn't automatically mean a child is intellectually an adult, especially in the case of a child with special needs. In certain, limited cases, child support can be continued past 19 or high school graduation with a special needs child, but there are other options, too. Specifically, if you fall into this particular category, you may want to discuss your options for social security disability as well. This is a specific kind of unique situation that definitely warrants speaking to an attorney one on one for guidance on how to move forward.
Ideally, you'd have your child support order established well before the child turns 18. I would probably venture to say that most people do, because it doesn't happen very often that I'm up against a case where the child's birthday is looming and there's no current support order in place.
What role does the child's preference play?
A very good question, too! Technically, the court CAN take a child's preference into account. A Guardian ad litem (an attorney appointed to represent the interests of the child) ALWAYS takes a child's preference into account. A GAL is an important person, too, because he or she will make a recommendation to the judge before your case goes to trial – a recommendation that, frankly, almost all judges give a lot of weight (though that's certainly not to say that the judge always agrees with or follows the Guardian ad litem's recommendation).
We don't usually bring children to court, though it can happen. It's quite rare that a child would actually testify about which parent they'd like to live with. In most cases, if a child does come to court, the judge will talk to the child privately. This is called "in camera"; the child will meet with the judge in the judge's office and discuss the child's wishes.
It's a lot of pressure to put on a child. I've personally never had a case where I've needed a child to state his or her preference in court. I'd prefer not to; I don't want to gain a reputation as an attorney who doesn't care about the damage caused to a child. I encourage my clients to avoid it, whenever possible, and most attorneys I know do the same. It's not always avoidable, and sometimes a child WANTS to testify (still, you have to remember a child is a child, and you and I have to be the rational decision-making adults). It's not a perfect system.
A judge will weigh the child's maturity and ability to make these kinds of decisions, too. A child who says, "Dad will let me eat ice cream and play video games until midnight, so I want to live with dad" will probably not be found to have too much maturity. Ultimately, it's up to the judge how much weight to give to a child's preference.
I have seen judges and GAL's find that, with older children, they won't follow a court order that doesn't align with their preference. That's not always the case, but I have seen it happen. (And it's true, too – can YOU tie down a 17 year old who is determined to do something? Also… that may be child abuse, so, that's another consideration.)
There's no question that coparenting an older teenaged child brings with it it's own set of challenges. They're challenges that you didn't really face before, when you could impose a custodial schedule on your children more easily and with less angst-ridden resistance. It's definitely a different ball game now, and that's often reflected in the way these matters proceed in court.
For more information, give our office a call at 757-425-5200 .
Tag with: child support | child's preference | child's testimony | custody | disabled children | guardian ad litem | in camera | older children | special needs | teenager | virginia | visitation
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