Child Support & Custody Info

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Divorce proceedings are very emotional; that is natural and to be expected. We will try to remain objective on your behalf, and tell you frankly if what you are asking for (or giving up) is out of line.

Parties sometimes use their children as pawns to gain advantage or seek revenge. Custodial parents threaten to withhold visitation from the father if certain unrelated provisions are not met. Non-custodial parents threaten to seek custody if certain other unrelated provisions are not granted or surrendered.

Both parents frequently try to curry the children’s favor as if to think “if the children like me better, then obviously the divorce is not my fault.” Such behavior is cruel and inhuman. We will not stand for it. If you display any of these behaviors, we will not continue to represent you.

 

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Keep the children out of your divorce. If for some reason they must become involved, prepare them properly without poisoning their minds about your spouse. Obtain professional advice if possible. Tell the children that the divorce is not their fault and that they will still have both parents when everything is over with. Read and practice the advice contained in the pamphlet, “Parents are Forever” available in our office.

Discuss support and property division only with your spouse or with your attorney. Do not use the children as messengers. Make a special effort to spend time with your children during this difficult time. Reassure them that both parents love them, even if you do not believe it. Give them your full attention. In one sense or another, they probably feel abandoned. Dating and introducing another male or female figure into their lives at this time is wrong, wrong, wrong. More than anything else in the world, your children want to see you and your spouse living together again. Absent that, your children want to be assured that they at least have you in their lives, and that after losing the parent who has left the home that they will now lose you. Your dating simply rubs salt in the wounds. “Dr. Laura” is incredibly right on this topic. Give them extra love now — they need it. And provide the other parent lots of opportunities to do the same. As the custodial parent, you should be looking for reasons to allow the other parent to see his/her child/children, not reasons to deny those opportunities.

One other item–this one is addressed specifically to custodial parents. Keep in mind that at the end of your child’s minority, you are facing a big, big expense called college tuition. You will probably want some assistance from the non-custodial parent (NCP) to help defray this expense. How do you best secure a willingness by the NCP to assist in those expenses? A contract is one way. Just put the obligation in the separation agreement. But that is not the best way. (If you read other sections of this e-article, you will see that we generally counsel our NCP’s not to sign such agreements, especially when the child is very young, because it is impossible to predict what circumestances our client will be in 15 or 18 years down the road.) Plus, there may be no separation agreement. No. . . the best way to assure that the NCP will help pay for your child’s college education is to make sure that the NCP has fallen in love with his/her child from the beginnig. And you do that by open and liberal visitation, not speaking ill about the other parent, and by following the advice we provide you in other places in this site and in our office face to face. If you poison your child against the NCP, restrict visitation to “exactly what the judge will allow and not 10 minutes more,” don’t come running to us about how mean and cruel and selfish your ex is being regarding sharing tuition expenses. You can simply sleep in the bed you made and work extra hours at your job–college tuition will be on your dime.

Joint custody is often agreed to by the parties. It is the kind of custody that makes the most sense because both parties and the child/ren need to feel a part of each others lives.

If you can agree upon “joint custody” as the type of custody, do so. In actuality, joint custody is just a word. A very soothing word, but just a word nevertheless. We strongly recommend its use in most cases. Parties have gone to war over the phrase “sole custody to mother, visitation to father” (and vice versa) but readily can agree to the term “joint custody, with primary residence with mother/father.” Just words, perhaps, but they mean a world of difference to the absent parent who wants (and in most cases deserves) to be called a ‘custodial’ parent. In either case the kids will stay primarily with the parent who has the “primary residence” attribute, but the soothing words saved a ton of heartache, a gallon of poisonous venom and a.bunch of money.

Is all of this to say that there is no difference between joint and sole custody? Well, we can’t say that exactly. After all the legislature has given a “definition” to these terms. (follow the links) It’s just that in practical application, the parties generally are going to do what they have always done with regard to allowing each other to see the children regardless of the label. If dad has never participated in the children’s lives, but wants the joint custody attribute (albeit undeservedly), he will still be uninvolved in the children’s lives. If a spiteful mother wants “sole custody” even though the father has been active in raising the children, and if the father agreed to settle on “custody to mother/visitation to father” to avoid a battle, you know what? He will stay active in raising the children. So, since in most cases it really is no different, and because it almost always will promote harmony, settle on joint custody . . . with primary residence with the appropriate parent.

Why do we push joint custody. Aren’t we supposed to argue for our client’s wishes. Well, actually, we are supposed to look after our client’s best interests, and pushing for something that serves no real purpose in hardly in our clients best interest. Disagreement over custody is almost guaranteed to put you right in the middle of a bitterly contested and expensive divorce. Custody cases are the cruelest and most destructive of litigation. Be sure that the children would be significantly better off with you than the other parent before you get involved in a custody fight. Custody cases are expensive in both emotional cost and in legal cost. The damage caused by winning a custody case is great; the damage caused by losing is terrifying.

The legal standard for deciding who will be awarded custody of a child is “what is in the best interests of the child.” It is not “mom always wins.” Here are the statutory citations. We encourage you to read them. Virginia Code Sections
20-124.1
(definitions),
20-124.2
(general standard),
20-124.3
(detailed factors). Despite the uniformity in the decision making process that the Code attempts to achieve, and the “no-presumption” in favor of either party it seeks to impose, judges are human beings and they may view the same set of facts quite differently. Some judges are more liberal, some more conservative.

It is frequently (if not universally) said that the mother has the edge in custody litigation. Statistically speaking, this is true, but this is not the law. The main reason for the ‘mother-bias’ is most likely that mothers generally come into court with the children living in their homes. If the children are thriving, there more often than not is no real reason to risk a change to another home. Status quo is a powerful ally. However, there are some (many) judges who feel deep down that mothers make better single parents. These judges have a subconscious (sometimes overt) standard that parental unfitness must be proven to “deprive” a mother of custody. These judges are not without some support elsewhere in their thinking (although the legislature has outlawed it). We are, after all, part of the animal kingdom, and our observations of nature in general prove the strength and value of the maternal relationship.

Other written and unwritten doctrines and presumptions aid the court in determining the best interest of the child. To augment what we have provided above, here is our take on what are the most powerful arguments and what are the weakest arguments to present to the court:

  • Continuity of Placement — If children are doing well where they are, do not mess things up by moving them. There are no courts in Virginia as of this writing where the father has an advantage in custody litigation. “Status quo” appears to be the most powerful factor. If a parent (mother or father) has had de facto custody for a reasonably long period of time, and assuming the children are faring well, the children will likely stay put.
  • Children’s Preference — By law, a judge may consider whom the child wants to live with if the child is “old enough.” “Old enough” is not based so much on years as it is maturity, but twelve-ish seems to be around the area. The judge is not bound by what the child wants (e.g., my dad promised me a new car and won’t make me do my homework, so I want to go live with him).

Propensity of a parent to promote relations between the children and the non-custodial parent–This is a new factor, but a darned important one. This is a must read section because it reflects a real philosophical change in the approach that many judges take to awarding custody.

A parent who comes into court trying to slam-dunk the other parent (“He’s always coming home late and I’m sure he’s messing around.” “She doesn’t do any of the housework.” “He doesn’t even know the children’s names.”) is at a noticeable disadvantage. Why? Because all the judge sees is that the parent seeking custody hates the other parent. And that is bad for the children. Judges believe that, in the vast majority of cases, children need both parents involved in their lives. (Notable exceptions are the obvious ones–abuse, drunkeness, and the like.) A parent may not like any more the person who he or she picked to bear their child, but that gives that parent no reason to bad-mouth the other parent, and to physically or emotionally deprive the child of two parents. Better the parent should say “He’s a wonderful father/mother, even though we cannot get along together as a couple. He/She doesn’t spend as much time with the children as I do, or as much as I would like him to, but I know he/she loves them. So long as he/she keeps his girlfriends/boyfriends out of the children’s lives while they visit with them, he/she should see them as often as possible. And while s/he’s not the best housekeeper, it would be like the children camping out in the woods when they go over to his/her home. That would probably be fun for them.” That gives the judge the impression that the parent seeking custody knows how to accept the failings of another with good humor and in stride. The judge will sense that the custodian will try build the relation between the non-custodial parent and the children, and won’t be bad-mouthing the other in front of the children.

The court can and will consider the custodian’s age, health, wealth, religious beliefs, conduct, sexual preference, type of home, psychological evaluations; the location of the residences of the child’s siblings; the child’s school performance; or anything else the court considers important.

Non-factors:

“I love them very much and will miss them terribly if they are not living with me.”
(Variance: “He doesn’t need them as much as I do.”)

“I make more money than my spouse and can buy them better things.”
(Typical response by judge: “Well, I can sure take care of that. And the children can remain put.”)

“My wife is the one who left the home. Therefore everything in the house, and the children she took with her when she left, should be mine.”
(Judges just love parents who consider children as property, don’t ya’ think?)

“I can’t have any more children.”
(And perhaps you shouldn’t, if that’s your best reason the ones you have now should be living with you.)

Remember what was written before: the test for custody is “Which parent can serve the child’s best interests?” The test is NOT “Which parent will have his or her interests served the best by having custody?”

If there is custody litigation, you must be able to show the judge that the child is better off with you. A photograph of you and your child having a good time doing things together at a particular moment is useful evidence, but live witnesses are much better. This is a good time to subscribe to and read publications such as Parents magazine. Buy some books about children, parenting, and getting children through divorce. Attend seminars and keep the brochures and literature. The important point here is to do these things for your child and for yourself. If you are doing it just to impress the judge, it will show.

Judge Michael J. Haas, Superior Court Judge of Minnesota, said the following relative to children and divorce:

Your children have come into this world because of the two of you. Perhaps you made lousy choices in choosing the other parent. If so, that is your problem and your fault.

No matter what you think of the other parent, or what your family thinks of the other parent, these children are one half of each of you.

Remember this: every time you tell your child what an “idiot” his father is, or what a “fool” his mother is, or how bad the absent parent is, or what terrible things the other has done, you are telling your child that half of him is bad.

That is an unforgivable thing to do to a child. That is not love. That is possession.

If you do that to your children, you destroy them just as surely as if you had cut them into pieces, because that is what you are doing to their emotions.

Think more about your children, and less about yourselves. And make yours a selfless kind of love, not foolish or selfish, or your children will suffer.

In arriving at a fair amount of child support, you should (and in the event of a contested trial, the court will) consider the needs of the children and the financial assets, earnings, and needs of each parent. Primarily, however, the court will use the presumptive Virginia Guidelines for child support. These “guidelines” are a chart of numbers which “suggests” (mandates?) a child support amount based on the incomes of both parents and the number of children to be supported. If you provide us that information in an office consultation, we can give you the presumptive figure. If you want to try it yourself, connect to this link: Virginia Child Support Guidelines, but without some practice, the calculation can be a little mind boggling, and worse, wrong.

The court can order the non-custodian to pay child support directly to the custodial parent or (in most cases) to the Division of Child Support enforcement. Further the court can order such things as continuation of health insurance. The court can require support of a child normally only until the age of eighteen or until the child graduates with its regular high school class, up to age 19. You can provide for a child’s college education, but you must do so by agreement, as the court cannot order it. Virginia does not presently require a parent to put a child through college. However, society expects that you will do what any parent similarly situated would have done had you remained married. Just because a child is not living with you is no reason not to be thinking of the child’s higher education, if you were preparing for it when you were still living with your spouse.

Support for a severely mentally or physically disabled child can be continued into that child’s adulthood if the child is still residing with the parent seeking support and the child is incapable of financially supporting him or herself.

If the children’s needs or the parent’s ability to pay support substantially and materially changes, then child support can be raised or lowered. Child support can be garnished out of the paycheck of the person who is paying it.

If support is ordered by a court, and the obligor (i.e., the non-custodial party) doesn’t pay, the amounts due (and arrearages) can be garnished from the obligor’s pay, tax refunds can be attached and ultimately, he or she can be put in jail. However, the real secret to receiving child support is to allow the obligor parent lots of visitation with the child he/she is paying support for. It really doesn’t matter how much you may loathe the other parent. Keep your child out of that conflict. A parent who knows his child well will instinctively want to support that child. By contrast, make contact difficult, and the opposite result will obtain. This is true even though :”for the first three months/years/hours of my child’s life he didn’t want to have anything to do with his daughter. Now he wants to see her!?!. How dare he!!!” Well, let him dare. Encourage it. Force it. (Of course, if the non-custodian was abusive to the child, protections do need to be put into place.)

If you have an oral agreement for support, and the obligor fails to pay it, your remedies are limited. You can beg the obligor to pay, but that is generally hopeless. You should reduce all child support agreements either to a written contract (i.e., a separation agreement, or whatever) or a court order. A court order is best. See immediately preceding paragraph. If you just have a written contract, it is still enforceable, but a couple of additional steps must be taken before you will receive money from the contract. One thing that many people are doing now is, immediately upon signing a separation agreement ordering support, they apply for court ordered child support, and ask the judge to “bless” the amount in the agreement.

Whether the custody is sole or joint with primary residence to a particular parent, the NCP will have the equivalent of visitation. If the parents can agree on visitation, the court will usually approve the plan. A typical pattern is alternating weekends, several weeks in the summer, and alternating holidays, but anything is allowed. One couple rented an apartment, kept the children put, and the parents moved in and out on alternating weeks. Pretty clever. If the parties live far apart, the typical patterns of visitation will not work. The situation then may call for fewer but longer visitation periods. If the parties live far apart, you must also deal with who will provide or pay for transportation.

Sometimes when parents fight about visitation, they are really upset about something else that they feel powerless to fight about. It may be because they feel angry at the other spouse for leaving or it may be that they feel they gave up too much in the divorce agreement. But for whatever reason, they are involved in an argument about the children. It is most often the case that the mother wants to restrict the father’s visitation. This is normally not a good idea, because when the mother says to the father, “I don’t want you to visit at this time,” that immediately becomes the time that the father wants to visit with the child. In some cases, the problem is that the mother wants the father to visit and he will not do it because “she is trying to force me into visitation just so she can have a babysiter.” We can offer you little aid in the case of the disinterested father. But our general policy is: “Offer it to him, bury him with it and remember that the father who visits regularly tends to be the father that pays support regularly, and is willing to assist in college tuition.”

If you want visits to be outside of the presence of the NCP’s new girl- or boy-friend, the judges with generally support you. But the same applies to you. What is good for the goose is good for the gander. However, our philosophy on this is that, at least while you are still married, no dating (especially in the presence of the children) should be done. Your children need you badly at this time. Your diverting your attention to another love interest instead of toward the children who don’t understand what just happened rubs tons of salt into their wounds.

Even if your situation is that the NCP is a jerk, and you do not think it is at all a good thing for the kids to be around him or her, you still need to encourage visitation. Children more often than not see their parents as their heroes, their role models and (like it or not) the people they want to be just like. Withholding (or discouraging) visitation from the NCP puts you against the child’s imagination.

If the children do not see the absent parent, then they soon forget what a jerk he or she may have been when you were living together. Further, and very frustratingly to the custodial parent (especially if the NCP really is a jerk), they begin to blame you for the situation that now exists (i.e., parents living apart).

The children dream about perfect parents, and since they do not see the absent parent (but see you every day), they do not see any flaws in the parent who is not there. You might win against many things, but you will lose against your child’s imagination.

In most states (including Virginia) grandparents can petition the court for visitation. The court may grant that visitation if it is in the best interest of the grandchildren. But the courts do hold the right of the parents to choose with whom their children associate in high esteem. Grandparent visitation is not automatic.)

Long distance relationships are becoming the new reality in divorcing families. Obviously they create special problems. Frequent visitation is virtually impossible but (pun very much intented) is “virtually” possible. A growing trend made possible by the same technology that enables you to be reading this text has enabled relationships separated by distance to nevertheless be maintained with a sense of “being there.”

See www.longdistancefamilies.com for an excellent site discussing technological and common-sense strategies on how to maintain a meaningful long distance relationship with your children.

This “computer booklet” (the longer Divorce in Virginia sections and this shorter Child Custody and Support page) is based in major part on a similar work written by George Lawrence “Larry” Rice, III, domestic relations attorney extraordinaire, who practices in Memphis, Tennessee, and lectures across the country on topics such as this. Mr. Rice’s broad based and practical approach to domestic relations is captured in his original text entitled “About Divorce,” first published in 1991, from which some of the words and many of the section titles have been drawn, and to whom great credit should be, and hereby is, given (Thanks, Larry).

The actual copyright of the original material is held by the American Bar Association (to whom Larry sold the copyright), whose permission to use and edit from the original is greatly appreciated. Even though most of the work above is now quite ‘original’, in the spirit of giving back to the community, copyright notices claiming rights in this website that appear elsewhere in this site are not applicable to this writing.

Domestic Relations law is complicated. A great deal of it is based on the sound discretion of the trial court and the rules and guidelines by which the court applies that discretion are constantly evolving and changing.

This “computer booklet” is only intended to be an informational primer to help you, the client, better understand and traverse the veritable minefield of law and emotions you are about encounter if divorce is in your imminent future.

This booklet is not a substitute for an attorney. Do not take legal action based solely on its contents, but rather consult with competent legal counsel first and follow his or her advice.If you choose to use this booklet as a “do it yourself” guide, you probably will get what you paid for it, and perhaps much worse.