Non-custodial parent This is the parent who does not have primary physical custody of the child.

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1 A GUIDE TO LEGAL ISSUES FOR N ON-CUSTODIAL PARENTS THIS BOOKLET EXPLAINS LEGAL TERMS AND SOM E GENERAL LAWS. IT IS NOT A SUBSTITUTE FOR HIRING A LAWYER. IN ORDER TO FULLY UNDERSTAND AND PROTECT YOUR LEGAL RIGHTS, YOU SHOULD SPEAK WITH A LAWYER. D EFINITIONS: Custodial parent/ Residential parent This is the parent who lives with the child most of the time. The custodial parent has physical custody of the child. Non-custodial parent This is the parent who does not have primary physical custody of the child. Decree A decree is an order made by the court. A divorce decree will spell out the rights of each party to property, finances and child custody. Each party must obey the divorce decree or risk being charged with contempt, which can result in a fine or jail time. Joint legal custody Joint legal custody means that both parents can take part in important decisions about their child. It also means that the non-custodial parent (see definition above) can get information and records about the child's medical, school and other activities. There is a preference for joint legal custody in Iowa. If a parent requests joint legal custody, and the court decides not to allow it, the court must describe in its order convincing evidence why joint legal custody is not good for the child. Usually in a joint legal custody arrangement, the child lives with one parent most of the time and the other parent has visitation. 1

2 Joint physical custody Joint physical custody means both parents have physical custody of the child. Joint physical custody arrangements vary. The child may change houses every few days, every week, every month, or some other arrangement may be made. Courts will not ordinarily order joint physical custody against a parent's wishes because parents sharing physical custody need to cooperate and talk to each other on a regular basis. Courts will usually allow joint physical custody if parents agree to it. Mediation A judge can order mediation in a child custody case. Mediation is not an attempt to persuade the parties not to divorce. It is used to help parents agree to a custody arrangement and avoid a court battle. The mediator does not represent either parent, and does not take sides or make orders. He or she is there to help the parties speak with each other and reach an agreement that works for everyone. Sometimes the husband and his lawyer are in one room and the wife and her lawyer are in another. If this is the case, the mediator goes back and forth between the rooms until an agreement is reached. Sometimes, everyone is in one room together. Although mediation does not always work, it is a good way to try to reach agreement without a long trial. Sometimes, people can agree to some things at mediation and save only the hardest issues for the judge. If both parents agree, they can arrange for mediation without a court order. Mediation services in Polk County are available at decreased rates for those who can not afford it. Non-custodial parent/ Non-residential parent This is the parent who has visitation, but does not live with the child most of time. Payor This is the parent who must pay child support. Payee This is the parent who receives child support payments from the other parent (payor). Physical Custody The parent who has physical custody has the child living with him or her most of the time and takes care of the child day to day. Split custody Split custody means the children do not all live with the same parent. Courts do not like to split up children and rarely order this. 2

3 Visitation Visitation is the right to visit with the child even though the other parent has physical custody. Visitation is almost always ordered for the parent who does not have physical custody. If the court believes that one parent is a danger to the child, the court may order supervised visitation or no visitation. Supervised visitation means the parent may not visit with the child without another adult present. For example, if a parent has a continuing drug or alcohol problem or has been accused of abusing or neglecting the child, he or she may not be allowed to visit with the child alone. It is rare for a court to order no visitation. There is no "regular" visitation required by law. Parents can agree to anything that is not harmful to their child and can ask the judge for something other than every other weekend. (For more information, see Visitation section of this pamphlet.) FINDING A LAWYER: Q: How do I find a law yer? A: You can find a lawyer in many different ways. The yellow pages offer a large listing of the lawyers available in your area and often list their areas of practice. Word of mouth is also a good way to find a lawyer. Asking your friends and co-workers if they know of a lawyer can help you to find one who knows family law and who has a good reputation. The Iowa State Bar Association runs a lawyer referral service that can help you find a lawyer. The lawyer referral service can be reached at The Youth Law Center provid es legal services to m inors. They can be reached at Q: What do I do if I can't afford a law yer? A: If you can not afford a lawyer, you should call the Legal Aid or Legal Services office in your area to ask if they will take your case. The Iowa State Bar Association runs a volunteer lawyer project that you can also contact for free legal help. Their telephone number is The Drake Legal Clinic also offers free legal advice and representation in some cases if you cannot afford a lawyer. The telephone number is Even if you do not qualify for free legal services, you can ask any lawyer if he or she is willing to take your case for a reduced fee or no fee. Most lawyers will also work with clients who can't p ay the full bill at one time. 3

4 Q: When I find a law yer, w hat questions should I ask? A: To begin with, you might want to ask the lawyer how often he or she has handled divorce/ child custody cases. Be sure to ask your lawyer about his or her fees for your first appointment before you meet with the lawyer. Make sure you read and understand any fee contract before you sign it. Ask how much you must pay up front, what kind of things you will be billed for, how much you will be billed by the hour, what part of an hour they bill for (for example, if you call and spend 10 minutes on the phone, how much will they bill you), how much they charge for photo-copying, how often you will be billed, when the bill must be paid, etc. Once you find a lawyer that you trust and can afford, it is important to be open and honest with him or her. The only way for your lawyer to help you is if they know all the facts of your case. This includes telling them exactly what you would like the outcome of your divorce/ custody arrangement to be. You need to be honest with him or her about your past, finances, fears and reservations. Only then can he or she help you effectively. THE ROLE OF THE COURT: Q: What rights do I have to my child w ithout a court order? A: If the parents are married to each other at the time the child is born, they both have equal rights to custody and visitation without a court order. If the father is not married to the mother at the time the child is born, he may have to prove he is the father before he gets any rights. This can be done by applying to a court or by filing an affidavit of paternity. You can get the affidavit of paternity from the hospital where the child was born, the county registrar, the state registrar, or the child suppor t recovery unit. If the mother does not agree or if she is married to someone else you will have to apply to a court to prove you are the father. If you file an affidavit of paternity, you will be required to support your child. Without a court order specifically giving you certain rights, it may be difficult for you to enforce those rights if the other parent is not cooperating. For example, if the other parent doesn't allow you to visit your child at all or as often as you want to or think you should, and you have no court order, you will need to apply for one. Q: What rights do I have to my child w ith a court order? A: If you have a court order, your rights to your child will be listed in that order. The rights granted to you in the order are a m inimum. For example, if the court order gives you visitation on alternate weekends, you must be allowed to visit with your 4

5 child on those weekends. If the other parent won t let you, they could be charged with contempt. However, you can agree with the other parent to visit your child more often than the order allows. By talking with each other, parents can add opportunities for visitation to the court order, but one parent cannot take visitation away from the other if visitation has been granted by the order. If the court order only says "reasonable" or "liberal" visitation and does not set times for visits, you may need to apply to the court to order specific times for visits. Q: What is the difference bet w een court-ordered mediation and optional mediation? A: Often during a divorce, prior to going to trial, the court will order the parties to try to mediate their disagreement. (See mediation definition above) If the court requires the parties to go to mediation, it is called court ordered mediation. If the court orders you to participate in mediation, you must do it. If you refuse, you could be held in contempt, which may result in a fine or jail. Even if the court does not require you to mediate, you may choose to do so on your own. For example, if you feel you can settle your disagreements about property, custody, or finances without going to court, but you need help talking to each other, you may decide to try mediation. This is optional mediation. VISITATION: Q: What do I do if I m having problems w ith the visitation arrangement? (for example, the other parent doesn't allow me to have visits, or the other parent arranges activities for the child during my scheduled visitation time, etc.)? A: Generally, the first thing you should do is try to talk about your concerns with the child s other parent. Try not to argue, but instead to explain why their behavior is a problem for you. If talking to the other parent does not correct the problem, you may need to go to court to get the order enforced, to add more specific terms, or to get the order changed in some other way. You will need to prove to the court that there is a serious and on-going problem, and not just a single incident. It will be helpful if you keep a record of problems by writing down each incident, the date it happened, what happened, what was said, if you attempted to talk with the other parent about it, etc. Q: How does the court enforce a visitation order? A: The court will hold a hearing to decide whether there is a problem and what to do about it. It is possible for the court to hold the custodial parent in contempt which means the parent may be sent to jail or fined. However, the courts generally do not like 5

6 to hold a custodial parent in contempt because that parent needs to be home to take care of the child. If the problem is not too bad, the judge will likely threaten contempt at the first hearing and not jail the custodial parent unless they continue to interfere seriously with visitation. Q: How do I make changes in the custody arrangement? A: In order to formally change your custody arrangement if you and the child's other parent don t agree, you would have to prove to the court that there has been a substantial change in circumstances since the last order and that it is in the child's best interest to live with you. For example, the custodial parent has a drug or alcohol problem or is leaving a young child alone without a sitter or adult. The court will not change custody just because you think you will be a better parent. Generally, the court requires that you not only prove that circumstances have changed substantially but also that the custodial parent does not take proper care of the child. Courts will not generally change custody just because the custodial parent is not honoring the visitation terms of the custody order. In some cases, however, the court might change custody because of extreme and continued interference with visitation. If joint physical custody is not working, the court will usually change it to sole physical custody by one parent with visitation by the other. Each case is decided separately, so you need to discuss your case with a lawyer to find out what can be done. Q: What is the usual visitation for the non-custodial parent? A: Iowa law does not set up a usual or required visitation schedule. There is no law that says you get to visit every other weekend. Whatever you and the other parent agree to or the court finds appropriate can be ordered. As long as the noncustodial parent is not proven to be a danger to the child, some type of visitation must be granted. The more time your child can spend with each of his or her parents, the happier your child will likely be. When you talk to the other parent about visitation, you should consider school holidays and other special occasions. Don t forget your birthday, the child's birthday, and mother's or father's day. If both parents want to spend Christmas with the child you might think about making Christmas eve and Christmas day two separate holidays so that the child can be with both parents or you may consider taking turns spending holidays with the child on alternate years. Anything you can agree to is possible as long as it is not harmful to th e child. Even if you end up in court, you can ask the judge for visitation that fits your schedule. It is then up to the judge to decide what is best for the child. Q: Will moving change my rights to visitation and/or custody of my child? A: Moving (without any other change in circumstances) will ordinarily not affect your rights to custody of your child. However, if either parent moves far away, the 6

7 court may change visitation or custody. Iowa law says that if a custodial parent moves 150 or more miles away, the move itself is considered a substantial change in circumstances which allows the court to change the order if it is in the child's best interests. The court will not usually change custody, but if the new home and the reasons for the move do not outweigh the negative effects of the move, the judge might change custody. For example, if the only reason for the move is to stop the noncustodial parent from visiting, the court might change custody. Each case is different and you need to speak with a lawyer to figure out what is likely in your case. Note If you change visitation, you need to get the original order changed to enforce the new visitation schedule. Q: Who has to pay for visitation if one parent moves far aw ay? A: There really is no bright line rule that says that one parent or the other has to pay for visitation if one parent moves far away. Essentially, this is an issue the court will decide, if the parents cannot settle it themselves. In making the decision, the court will look at many different factors, including, but not limited to, the income of each parent. CUSTODY AND SUPPORT: Q: What do I do if the other parent isn t helping me w ith the child? Can I force him/her to help? A: At the very least, the non-custodial parent MUST pay child support. If the other parent isn t paying child support, he or she can be forced to do so. If the non - custodial parent is not paying support, you can ask the Child Support Recovery Unit or a private lawyer for help. Unfortunately, you cannot force the other parent to help you physically care for the child. If you do not have enough money, there might be a child care center in your area that offers "respite care" or emergency care if you are afraid you can't care for the child and need a short break. Q: If I have visitation, do I have to pay support? A: Yes. The non-custodial parent must pay the custodial parent child support through the clerk of court or the Collection Services Center. The amount of support that you are required to pay varies, depending on your income, the other parent's income and the number of children you have. 7

8 Q: If the custodial parent interferes w ith visitation, do I have to pay support? A: Yes. Your child needs support even if the custodial parent interferes with your visitation rights. You can get help enforcing your right to visitation but you must pay child support in any event. Q: Do w omen have to pay child support? A: Yes. If a woman is the non-custodial parent, she must pay child support. It makes no difference whether the non-custodial parent is a woman or a man. Q: What rights do I have as a non-custodial parent to make decisions about my child s medical treatment, education, etc.? A: As long as the court has not term inated your parental rights and you have been granted joint legal custody, you have the same rights as the custodial parent to make decisions about your child. If you have no court order, but you were married to the other parent at the child s birth or you were not married to each other but a paternity affidavit has been filed, you should have the same right to make decisions as the custodial parent. This applies to medical, school and religious decisions and information. Major decisions about your child should be made with the help of the other parent. In some places you can get free mediation services to help you reach an agreement with the other parent without having to go to court. If you can't reach an agreement with the custodial parent, you might need to speak with a lawyer if you feel the child will be harmed by the custodial parent's decision. Q: What right do I have to get information (medical, school, etc.) about my child if I am the non-custodial parent? A: Again, as long as your parental rights have not been terminated or limited by the court and you have joint legal custody, you have the same rights that every other parent has to get information about your child. If you have no court order, but you were married to the other parent at the child s birth or you were not married to each other but a paternity affidavit has been filed, you have the same right to get information about your child as the custodial parent. Q: Can my child decide w hich parent he or she w ants to live w ith? A: If your child is mature enough, the child s preference for custodial parent is a factor considered by the court when it decides on custody. However, your child s preference will not be the only factor the court considers. In deciding how much weight 8

9 to give your child s preference, the court will look at your child s age, grade level in school, maturity, relationship with family members and the reasons for his or her preference. For example, if the child wants to live with one parent because that paren t has "poisoned" the child's mind about the other parent or because one parent buys the child more toys, the child's preference is not likely to carry much weight. UNMARRIED AND TEEN PARENTS: Q: What can I do if my girlfriend gets pregnant and I am not sure I am the father of the baby? A: You can have a blood test done to find out whether you are the father. If you and the mother agree and have money to pay for the blood test, you can have it done without a court order. If not, it can be done as part of a paternity proceeding (a petition to the court to decide who the father is). The law allows the mother, the father and the state to file a paternity petition. In the paternity proceeding, the court will usually order the child, the mother and the named father to take a blood test. If the state started the paternity action, you cannot be required to pay for these tests in advance if you don't have the money. If, on the other hand, you file the petition, you may be required to pay for the tests. You may be able to get help paying for the tests from some of the agencies listed at the end of this booklet. Q: If I take the blood test and it turns out that I am the father, w hat are my legal rights and responsibilities? A: After it is proven that you are the father, you will be ordered to pay child support. You will also have the right to visit with your child. You can also ask for custody which will be ordered if the court finds it is in the child's best interest. You must apply to a court to get visitation or custody. The child support recovery unit can t issue orders for custody or visitation. Q: Will it be difficult to get my name on my child s birth certificate at the hospital if I m not married to his or her mother? A: If the mother was unmarried during the pregnancy and at the time of conception, birth, or any time between conception and birth, and both you and your child s mother agree that you are the father, it is not difficult to get your name put on the birth certificate as the child s father. You will usually be asked to fill out paternity papers at the hospital. Both you and your child s mother will need to sign the papers. If you fill out and sign the papers, when your child s birth certificate arrives in the mail, your name will be listed as the child s father. If, however, either you or your child s 9

10 mother refuse to sign the papers, or she was married during pregnancy or at the time of conception, birth or any time between conception and birth, you will need to ask a court to declare you are the father. This is called a paternity proceeding. Note if you sign papers saying you are the father, you will have to pay child support for that child. Q: As an unmarried father, can I get custody of my child? A: As long as the mother admits that you are the father of the child or you have a paternity order (a court order saying you are the father), or you filed a paternity affidavit, you can ask for custody of your child. The child's mother has an equal right to custody until the court orders otherwise. The court will give you custody if they find it is in the best interests of the child for you to have custody. Unless you are a danger to the child, it is likely that the court will award you at least some type of visitation. Q: As an unmarried father, am I legally entitled to visit my child? A: Yes. The father of any child, including a teenage father, has the right to be involved with his child unless he has been proven to be an unfit parent, has given up his parental rights, or the family court believes that contact with the child is not in the child's best interest. Q: How do I get to visit w ith my child if the other parent w on't let me? A: You may need a lawyer to help you. If there is a court order giving you visitation, but the custodial parent stops you from visiting at the time set in the order, you will need to go to the court to ask the judge to enforce that order. If you do not have a court order, you will need to go to court to ask for visitation. If you have an order but it doesn t state times for your visits, you may need to go to court to change the order to specify times for visits. The custodial parent must follow the order or risk being charged with contempt, which could result in a fine or jail if he or she interferes with your visits. 10

11 Q: Do I have to pay child support even if I am only a teenager? A: The legal responsibilities of teenage parents are the same as those of adult parents. In Iowa, teenage parents must take care of their ch ildren. You are required to support the child regardless of the fact you are not married to his/ her other parent, even if the court does not allow you to visit the child. Unless there are special circumstances, if you are 19 or younger, in school or certified as needing special education, and don t have a high school diploma, the court will order you to pay $25 a month for child support. If you are not in school or you have a high school diploma, the court can order you to pay child support in the amount set up under the guidelines for adults. Sometimes, the grandparents will be ordered to help pay for the child if the minor parent is a child himself. MORE INFORMATION: Q: Who can I contact for more information about my rights? A: There are many resources available to you. You can contact a private lawyer who you found in the yellow pages or through the Iowa State Bar Association. A hotline called Iowa Concern is available to help with financial questions and legal issues. The lawyer at Iowa Concern will not represent you in court, but he or she may be able to provide some general answers about legal issues. Their hotline is open to answer legal questions from 8 a.m. until 5 p.m. If you can't afford a lawyer, you can contact Legal Aid or Legal Services in your area. You can also contact the Drake University Legal Clinic for more information regarding your rights. They take a very limited number of cases. There are a number of organizations that do not provide legal services but that give general information about parental rights. For contact information, see the Resources section of this pamphlet. 11

12 TIPS Don't forget special days for visitation. When setting up visitation, don t forget birthdays (the child s and yours), Mother s Day, and Father s Day. Keep a diary - If you are having problems with the custody/ visitation arrangement and talking with your child s other parent isn t working, be sure to write down each problem and note the date on which the problem occurred. This may help your legal case if you try to modify the custody/ visitation agreement. Don t fight about custody or visitation in front of your child. It is important that you work together with your child's other parent for the sake of the child. Verbal or physical fighting in front of your children is very harmful to them. Try to talk to the other parent without fighting. Keep them informed about your child. Try to talk about anything affecting visits. For example, if there will be a problem if they are late, let them know before they pick up the child. Try not to make a big deal about every little issue but also try not to let things build up to the point where you can t talk about it without fighting. Don t use your child to get back at the other parent. Don t say bad things about the other parent in front of or to your child. A child should not be forced to choose between parents or to pretend to dislike one parent while they are with the other parent. The child will always have two parents whether you like the other parent or not. You need to separate your relationship with the other parent from your relationship with your child. Make sure you are consistent about visiting the child. If you must miss visitation, make sure you call and explain beforehand. If possible, see if you can reschedule a missed visitation or at least call and speak to the child if possible. 12

13 RESOURCES: Child Abuse Prevention Council 1200 University, Suite B Des Moines, IA Provides free parenting classes covering special problems including substance abuse, ADHD, preschool children, school age children, adolescents, etc. Des Moines Child Guidance 1206 Pleasant St. Des Moines, IA Children & Families of Iowa 1111 University Des Moines, IA Provides a host of services including counseling, respite care, parenting classes through Parents Anonymous, budget counseling, etc. Also includes parenting tips on their web site at Drake University Legal Clinic 2400 University Ave. Des Moines, IA Provides free legal services to a limited number of clients. Fathers for Equal Rights 3623 Douglas Ave. Des Moines, IA Provides counseling, lawyer referral, and neutral drop off. First Call for Help 211 Provides referrals to community programs, agencies and resources from a database of over 2000 listings to help with just about any issue including, financial, child care, parenting, counseling, legal, etc. Iowa State Bar Association - Lawyer Referral Service Iowa only Provides referrals to lawyers. The referral is free but legal services are not unless the lawyer agrees to represent you without pay. Iowa State Bar Association - Volunteer Lawyers Project 521 E. Locust, Suite 302 Des Moines, Iowa (515) Provides referrals to lawyers who offer free legal service. Legal Aid Society of Polk County St. Des Moines, IA Provides free legal services to the poor. 13

14 Parenting Monthly Web site / Provides information about parenting classes (one-time and series), support groups, step parenting workshops, a listing of community parenting resources, and a section with information, tips and events just for dads. Local libraries supply computers and technical help to find this web site. Planned Parenthood of Greater Iowa 1040 E. Army Post Rd. Des Moines, IA ; Provides medical and counseling services. Discounts available. Child Support Recovery Unit Specialized Customer Services Unit (Des Moines free calling area), or (Toll-free within the United States) Provides customer service and information for Iowa s child support offices. Youth Emergency Shelter Services 918 SE 11 St. Des Moines, IA Young Women s Resource Center 705 E. 2 nd Street Des Moines, IA Provides support groups and education groups about child birth. Youth Law Center 218 6th Ave. Des Moines, IA # Provides legal services to children. 14

15 Prepared by Drake University Law School Joan & Lyle Middleton Center for Children s Rights Funded through a Child Support Recovery grant administered by Polk County Decategorization 6/ 1/ 02 15