Child Custody and Support

Child CustodyThe process for resolving issues of child custody and support for children of unmarried parents begins by filing a petition for custody and support in the Juvenile and Domestic Relations District Court (J&DR court) of the county where the child has resided for the previous six months.  The J&DR court is the lower court where pleadings are less complex and the hearings are less formal.  If you are not satisfied with the ruling in the J&DR court, you can appeal the decision to the Circuit Court and you will have a “do over.”

In cases involving married parents who are contemplating divorce, it is often advisable to begin the custody case in Circuit Court because it can be handled as part of the divorce, which must be heard in Circuit Court anyway.

The four major areas of child custody litigation are:

Physical custody:  Physical custody refers to where a child physically lives most of the time. Traditionally, when parents separate, the child or children live with one parent and visit the other parent.  One parent can have primary physical custody, or the parents can share physical custody.  In shared-custody cases, a child splits his or her time between both parents.  Shared physical custody is less common, and is only possible where the parents live very close enough to each other so that the child can easily get to school from each parent’s home.  In addition, shared physical custody will only work if both parents have the ability and time to care for the child on a day-to-day basis.

Legal custody:  Legal custody refers to decision-making power.  If one parent has sole legal custody, that parent will have the right to make all major decisions involving the child, such as religious upbringing, schooling, health care, etc.  If the parents have joint legal custody, they are required to confer and discuss what to do when faced with major decisions.  Joint legal custody is common and is generally only denied in situations where it is clear that the parents cannot communicate or agree on anything, or where one parent has demonstrated behavior that makes it clear to the judge that he or she should not be involved in such decisions.

Visitation rights:  In situations where one parent has primary physical custody of the children, the other parent (non-custodial parent) will almost always be granted visitation rights with the children.  The visitation rights can be according to a specific schedule, or can be a flexible schedule to be determined by the parties.  A parent would only be denied visitation in situations involving abuse of the child, severe substance abuse by a parent, and other similar serious situations.

Modifications:  In most cases, a child custody and/or support arrangement established at the time of divorce or separation will need to be changed at some point prior to the time the children turn 18.  When a change in custody or support is required, a parent must file a motion or petition with the court seeking to modify the existing court order based on a material change in circumstances, such as relocation, job changes, educational needs, etc.  The judge will change the existing order if he or she finds that it would be in the best interests of the child for the order to be changed.

Child Support and Spousal Support Litigation in J&DR Court:

The two areas of support litigation can be handled in the J&DR Court:

Child Support:  Child support in Virginia is determined by each party’s income, childcare costs, and health insurance costs for the children.  While the calculations are generally strictly adhered to by the judge, there are occasions in which the court will increase or decrease the figures based on a number of factors.  Such factors include the support of “other” children (meaning children from another relationship), undocumented income such as tips and income from rental properties, additional support necessary for children with special needs, and a party’s voluntary unemployment or underemployment.

Spousal Support (married couples, only):   Many factors are taken into consideration in determining whether spousal support should be awarded.  Spousal support is intended to provide financial stability to the dependent spouse, but it is not granted in all instances.  In J&DR Court, spousal support is determined by following a mathematical formula based on the incomes of both parties.

Ms. Callaway offers compassion and sensitivity to help you through your child custody, visitation, and support issues.  Recognizing how traumatic child custody litigation can be on her clients and their children, she always encourages her clients to attempt to resolve their issues amicably, rather than immediately proceeding to court.  However, when the situation calls for it, she has the skills and experience to represent your interests at trial.