Child Custody

The court has the power to award joint legal custody, joint physical custody, or both.

"Joint custody" means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child's primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.

"Sole custody" means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.

In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.

The Virginia statute 520-124.3 takes into consideration the following factors when determining custody and visitation:

1. The age and physical and mental condition of the children, giving due consideration to the child's changing developmental needs.
2. The age and physical and mental condition of each parent.
3. The relationship existing between each parent and each child, giving due consideration the positive involvement with the child's life. The ability to accurately assess and meet the emotional, intellectual needs of the child.
4. The needs of the children, giving due consideration to other important relationships of the child, including but not limited to, siblings, peers and extended family members.
5. The role which each parent has played, and will play in the future, in the upbringing and care of the children. Primarily the court gives consideration to the best interest of the children and there is no presumption in law which favors either parent.
6. The propensity of each parent to actively support the children's contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the children and the ability of each parent to cooperate in matters affecting the children.
7. Reasonable preference of the children if the court deems the children to be of reasonable intelligence, understanding, age and experience to express such a preference.
8. Any history of family abuse.

In determining the amount of child support this same statute also provides that it shall be based upon the following:

1. The age and physical and mental condition of the children.
2. The independent financial resources, if any, of the children'
3. The standard of living for the family established during the marriage.
4. The earning capacity, obligations and needs, and financial resources of each parent.
5. The education and training of the parties and the ability and opportunity of the parties to secure such education and training.
6. The contributions, monetary and non-monetary, of each party to the well being of the family.
7. The provisions with regard to marital property.

The Code of Virginia mandates a method of determining child support by using guidelines based upon the gross income of the parties. These guidelines are used in conjunction with the factors listed in Section 20-107.2 as shown above. The formula takes into consideration:

1. The number of children for whom support is sought is determined.
2. The gross monthly income for both parties includes income from all sources and includes salaries, dividends, interest , trust income, social security benefits, workman's compensation, disability insurance benefits, spousal support, rental income, etc. It does not include child support received.
3. If spousal support is paid by one parent to the other, this amount is subtracted from the payer's column and included in the payee's column.
4. If either parent has income from self-employment from a partnership or a closely held business, reasonable business expenses can be deducted.
5. (a) From the tables found in Section 20-108, the basic child support obligation is determined from the guidelines which is dependent upon the combined monthly gross income and the number of children for whom support is sought.

   (b) Extraordinary medical and dental expenses can then be added to this basic figure. Also, any costs for health care coverage when actually being paid by a parcnt, to the extent such costs are directly allocable to the child or children beyond whatever coverage the parent providing the coverage would otherwise have, shall be added to the basic child support obligation. However, the monthly obligation of the non-custodial parent shall be reduced by the cost for health care coverage to the extent allowable by this section when paid directly by the non-custodial parent.

   (c) Sums for employment related child care expenses can also be added into this figure.

6. The total monthly child support obligation for the children in the family is then determined by adding 6(a) (b) and (c) above.
7. The payer determines the amount he or she pays to the other spouse by calculating what percentage the payer's gross monthly income is of the parties' combined gross monthly income.

This amount is a rebuttable presumption. This means that it is presumed to be correct but can be rebutted by other conditional evidence. This additional evidence is where any unusual circumstances are demonstrated to Court. This is also the place where most of the litigation occurs, because the numbers are rarely in dispute.

There are different calculations which apply when the parties share or split custody. The shared custody rules apply when each parent has physical custody of a child or children born of the parties, born of either parent and adopted by the other parent, or adopted by both parents, for more than 110 days of the year. Any calculation under this subdivision shall not create or reduce a support obligation to an amount which seriously impairs the custodial parent's ability to maintain minimal adequate housing and provide other basic necessities for the child.

The court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.

Copyright @ 2009 Michie Hamlett Lowry Rasmussen & Tweel, PLLC