Does Filing for Bankruptcy Affect Custody?

Custody can be one of the most heated issues in a divorce or in any family where both parents aren’t living under one roof. And in most cases, parents will want to do all they can to protect their right to custody.

But what if you’re facing mounting financial challenges and bankruptcy has become one of your best options? Could filing for bankruptcy affect your parental rights?

The answer to that is “no.” Directly, filing for bankruptcy will not affect your custody rights. Your bankruptcy case will be dealt with in bankruptcy court, which has no bearing on custody, which is determined in family court. And the main priority of family court in determining custody is the well-being of the child.

Of course, a judge in family court will consider your financial situation to some degree. If you’re struggling to maintain a solid financial standing and those struggles have affected your housing situation or your ability to meet your basic daily needs, it’s possible your custody arrangement will be affected. Your right to spend time with your child will not be denied, but in order to have traditional in-home visits with your child you’ll need a stable home. Parents must be able to prove to the family court they are capable of providing food, clothing, and housing to their child in order to be granted custody.

When it comes to custody and bankruptcy, many of the same rules apply that apply to filing for bankruptcy in general. For example, filing sooner rather than later is usually better. The earlier you take control the better the odds you’ll avoid a dire situation that could affect your custody arrangement.

Bankruptcy and Child Support

Despite bankruptcy usually not having a significant bearing on your custody arrangement, it can be an issue when it comes to child support.

Child support payments are non-dischargeable. This means bankruptcy will not eliminate overdue child support payments, nor will it alleviate your obligation to pay future child support. And the automatic stay created by bankruptcy does nothing to stop efforts to collect child support payments. You can still be sued for child support, even if you’re in the midst of filing for Chapter 7 bankruptcy.

Filing for Chapter 13 bankruptcy provides a bit of protection concerning past due child support, but you’ll need to meet your current and future obligations to maintain that protection.

The bottom line when it comes to filing for bankruptcy and child support is that it won’t do much in the way of alleviating your financial obligation to your child. Child support is a priority debt and as such, can’t be eliminated through a bankruptcy.

The newer bankruptcy laws that went into effect in 2005 had a significant impact on how child support is handled in a bankruptcy. You can learn more here.

Family court recognizes how important it is for a parent to take responsibility for his or her child, and the bankruptcy court shadows that approach. The same is true when it comes to custody. Family court acknowledges parents have a right to time with their child and the bankruptcy court does not interfere with that right.

If you have concerns about bankruptcy and your rights as a parent, or you want to discuss the benefits of filing with someone, we can help. Contact the Law Offices of Robert M. Geller at 813.254.5696 to schedule a consultation.