How Virginia’s Child Support Law Creates Visitation Disputes

By Nicholas Jon Solan, Esq.

Introduction

            Custody and visitation disputes can bring out the worst in otherwise reasonable and loving parents.  Anger, hurt and finances can take precedence over the children’s concerns, despite Virginia law’s mandate that the children’s best interests control. 

Parents, however, often ignore this.  Some let their anger and hurt control their decisions, while others let financial concerns dominate their actions.  Hence, it should come as little surprise that a visitation dispute could be based on disagreements over child support.  It should, however, come as a surprise that Virginia law appears to incentivize this unfortunate behavior.    

Calculating the Total Support Obligations

            Calculating child support is a long, yet simple process.  First, one determines the gross incomes of the parties.  Gross income includes income from all sources, but does not include the following:

            1. Benefits from public assistance and social services programs;

            2. Federal supplemental security income benefits;

            3. Child support received; and 

            4.  Income received by the payor from secondary employment income obtained to discharge a child support arrearage established by a court or administrative order.  Va. Code § 20-108.2(C).

            Next, one deducts from gross income the following: 

            1. Spousal support paid pursuant to an order or written agreement;

            2. Half of self-employment tax paid;

            One then makes all appropriate presumed deductions.  There is a presumed deduction from gross income in the amount of child support paid to a child not the subject to the present proceedings pursuant to an existing court or administrative order or written agreement.  Va. Code § 20-108.2(C).  Further, if one is the primary physical custodian of a child not the subject of the present proceeding or has such a child living in their household, there is a presumed deduction from gross income in the amount that represents that party's support obligation under the guidelines based solely on that party's gross income.  Va. Code § 20-108.2(C).

            After the gross incomes are determined, one adds gross incomes and looks to the chart under Va. Code § 20-108.2(C) to determine the basic child support obligation between the parties. 

            Then, one adds the following amounts to the basic child support obligation to determine the total child support obligation of the parties:

            1. Costs for health and dental care coverage allocable to just the child or children;

            2. Work-related childcare costs of the custodial parent. 

            Then the Virginia Code allocates this obligation between the parties . . . in a most baffling manner.

Allocating the Total Support Obligation

            The allocation of the total support obligation depends upon how often the parties care for the child. 

            If the child will be with the non-custodial parent 90 days or less, [1] the non-custodial parent’s child support obligation equals the total child support obligation multiplied by the proportion that parent’s gross income compares to the total gross income, with deductions for the non-custodial parent’s payment of health and dental care coverage.  This is the “sole custody” child support obligation. 

            If, however, the child will be with the non-custodial parent more than 90 days, a “shared custody” child support obligation is calculated as a function of the ratio in which the parents have custody and visitation of the child (i.e., the number of days with the child divided by 365 days).  First, a “shared support need” is determined by multiplying the total child support obligation by 1.4.[2]  Then, two separate calculations are made for each parent.  Next, for a given parent, the “shared support need” is multiplied by the other parent’s custody share.  Then, the other parent’s payment of health or dental care coverage for just the child and work-related childcare costs is added to the figure.  The resulting figure is then multiplied by the parent’s gross income share to determine his or her support obligation to the other parent.  The parent with the larger support obligation ends up owing the difference between his obligation and the other parent’s obligation.  

            The difference between the “sole custody” and “share custody” child support obligations is dramatic, as illustrated below. 

Illustration

            Assume that Parent A and Parent B have an 8 year old child.  Parent A and Parent B both earn $6,000 per month.  Parent B is the non-custodial parent and receives health insurance coverage for the child at no additional expense.  If the child will be with Parent B for 90 days of the year, than Parent B’s child support obligation is $538 per month.  If the child will be with the Parent B for 91 days of the year, than Parent B’s child support obligation is $378 per month.  If the child will be with Parent B for 100 days of the year, Parent B’s child support obligation is $340 per month. 

            In sum, Parent B’s child support obligation is reduced $160 per month if he has the child 91 days of the year rather than 90 days of the year.  As child support must be provided until the child reaches the age of 18 years[3], this one extra day of visitation could save Parent B up to $19,200 over this period of time.

Discussion/Conclusion

            It should be obvious that these savings lead to considerable problems in negotiating, litigating and/or settling on an appropriate visitation schedule for the non-custodial parent.  Parent B above will demand more than 90 days with the child (regardless of whether it furthers the child’s best interests) and Parent A will demand less than 90 days with the child (regardless of whether it furthers the child’s best interests).

            The overriding flaw in the dual guideline scheme is not that there is a threshold in place, but that the respective guideline figures are so distant and thus have such a marked affect on one’s child support obligation/award.  Making the gap between the two guidelines more gradual would help limit or erase the negative incentives the 90 day threshold creates. 

            The Virginia General Assembly has been well aware of this “cliff effect” for some time.  Indeed, legislation was passed in 1999 to reduce the cliff effect.  This legislation reduced the 90 day threshold from the original 110 day threshold and increased the multiplier to 1.4 from the original 1.25.   Child Support and Visitation, Virginia General Assembly House Document No. 43 (1999).  It was believed that visitation disputes would be reduced because more cases would fall under the shared custody guidelines and the increased multiplier would further reduce the dramatic differences between the sole and shared custody calculations.  id.  While this legislation did reduce the “cliff effect,” it did not do so enough to make visitation disputes over child support issues mere anomalies.  The perverse incentives remain and best interest of the children will continue to suffer.