Child Support and Shared Custody

Posted on Oct 9, 2020 by Katie Carter

Today, I’ve been practicing family law, representing women exclusively, for a little over 9 years. I’m inching ever closer towards a decade of dedicated, women only, divorce and custody practice. There are still new, novel issues that present themselves – I am told, from veterans like Lori Michaud and Sheera Herrell, that it is always this way, even with two or three decades’ worth of experience – but there are some common issues that keep coming up, over and over again, in case after case.

You would think that child support is one of those issues that people don’t fight because it’s established by a formula in Virginia (as in pretty much everywhere else in the country, as far as I know), and, to some extent, that’s true. The formula is the formula. (Albeit, a not particularly generous formula.)

If child support is determined by a formula in Virginia, how can my husband fight it?

It’s true that child support itself is more or less untouchable; it is what it is. But the clincher here is not child support – it’s custody.
We use a different formula for calculating child support under a primary physical custody guideline than we do a shared physical custody guideline. Child support is more if you have primary physical custody.

Under shared physical custody, child support is based on a sliding scale, so the more time you have with the children, the less you pay in child support.

Shared physical custody doesn’t mean that custody has to be shared 50/50; shared physical custody is a category of types of custody arrangements (which can look literally a million different ways) where the non custodial parent (the parent who has the child less) has more than 90 days.

So, parents with shared custody could share the days in a year 90/275, 100/265, 150/215, or split the year perfectly at 182.5/182.5. It’s a flexible concept, and child support changes depending on the amount of time each parent has with the child.

What other factors affect a child support calculation?

The number of days you spend with the child are only part of the equation. The formula also takes into account your incomes (including spousal support), support paid for other children, work related childcare, and health insurance costs for the children.

Is he going to fight me for custody to avoid paying child support?

See, that’s the problem. If he sees the cost of child support under a primary physical custody scenario and he gets sticker shock, the only thing he can do to change it is to ask for more parenting time.

So, although he can’t fight you on the support, he can fight you for more parenting time, so, in that way, child support cases ARE sometimes litigated. I don’t want to sound jaded and suggest to you that he would only be petitioning for more time because he wants to lower his child support obligation (instead of the intrinsic joy he gets from spending time with his children), but…

What can I do to avoid a custody fight in court?

You probably don’t want to litigate custody. I don’t think anyone goes into a divorce or custody case thinking how much fun it’ll be to fight. Heck, even when you win on every point, I don’t think it often feels that fun, especially as the person going through it. As the attorney, maybe. But when its your life hanging in the balance, it’s stressful because you don’t know ahead of time that you’ll win. And there’s a lot at stake, especially in a custody case.

So, how do you avoid custody litigation?

You don’t have a lot of options. Under the new custody laws, we’re seeing more and more shared custody ordered than ever before. It’s not that judges automatically have to award shared custody, but – often, they do. Even for a dad who hasn’t parented much before, he’ll often find that he is given a chance.

It may be different in the case of a nursing infant, and you will certainly have an opportunity, through your Guardian ad litem, if you have one, to have your child’s voice heard. We rarely (if ever) bring children to testify, but their preference or their feelings can be taken into account through their conversations with their GAL. Different arrangements are appropriate for different children at different stages, including school aged children and teenagers.

We also use the best interests factors to make arguments about custody and visitation, so you’ll want to pay attention to those as well.

It may be that you’re willing to negotiate on child support. I always hesitate to suggest that as an option because I believe firmly in child support, and in children receiving it. Even if you don’t “need” it, it’d be nice to have that money each month to sock away into a 529 account, or to put into a trust account for the children to use later.

Since child support obligations don’t really allow for extracurricular activities, either, if you have that extra money to draw from, you may find it easier to allow your children to study abroad, attend that equestrian or space camp, travel to a volleyball competition in Colorado, or attend a summer sleepaway camp.

Still, you could negotiate downward. You can also petition to modify it later, when there’s a material change in circumstances. You could waive or reserve it, too, and then once you get an agreement in place, immediately petition the court to determine child support. Once you’ve got an agreement for custody and visitation, it won’t be changed unless and until there’s a material change in circumstances – and, even then, only by agreement or court order. The cool thing there is that you’ll have the status quo in your favor, and it’ll be harder to change absent new information, challenges, or circumstances.

It’s not a perfect world. You know that. And child support should be a given. But it’s alarming to many moms to think that, by insisting that your child receive the support that he or she is due under the law, you might open yourself up to unwanted custody litigation. Not only that, but you might be facing litigation against a father who doesn’t do so for the sake of spending time with his children but only to make his monthly finances feel a bit freer.

It’s not easy. These are challenging waters to navigate, and you don’t have to do it alone. For more information, schedule a consultation, or visit our website for more custody-related information. We’re here to help