It’s a tale as old as time – or, at least, a tale as old as shared custody.
What happens when a dad fights for a parenting plan that reflects shared custody (meaning that he gets 90 or more days of parenting time over the course of a calendar year), but then doesn’t exercise his time?
The problem: shared custody comes with a reduction in child support. Under Virginia law, primary physical custody yields the custodial parent (the parent who has the child more) the maximum amount of child support. Once the parenting plan puts the parties in shared custody territory, child support adjusts like a sliding scale – the more time the non custodial parent (the parent who has the child less) has, the less he pays in support.
Why would the law reduce his child support obligation? Well, the theory here is that, if dad (assuming its dad for our purposes; if that offends you, then you may be in the wrong place) takes more time with the kids, his expenses related to the kids – feeding them, housing them, generally caring for them – will increase, so it’s fair to reduce the overall child support obligation. The way the law sees it, he shouldn’t pay mom the maximum under the law when he has so much time with the kids and is – presumably – spending money on them during that time.
But dad asks me to send all their things – clothes, toys, diapers, wipes, formula, and snacks – anyway! How is he spending his money on them? Sometimes, the things I send don’t even make it back to my house!
It’s a fair question, and one that we get all the time. The law is silent on this point, though I can’t tell you how many times I’ve fielded a call or email from a client whose ex (or soon to be ex) is asking for diapers, wipes, formula, clothes, and toys for the kids.
There’s the dilemma – do I send them, knowing I may never see them again? Or do I refuse, knowing that it’s the kids who’ll pay the price (in discomfort or unhappiness or worse) if I don’t?
You are well within your rights to tell dad to buy his own diapers. He should have a closet of clothes for them to wear; it’s not technically necessary for you to pack a suitcase when the kids go to stay with him. He should have food to feed them. He should have winter coats.
At the very least, when you send these things – especially expensive items, like winter coats and video game consoles or whatever the latest thing is – they should come back home with the kids when they return to you. But it’s pretty common that these things disappear, or become permanently relegated to dad’s house.
Still, the law doesn’t address this. Because he has more time, he is spending more money – even if all the evidence suggests that he’s actually not.
But he asked for all this parenting time – and now he doesn’t exercise it! At my last count, he has had less than 90 days of parenting time a year since our order/agreement was entered!
Therein lies the rub, right?
A dad fights for parenting time, to get the reduction in support, but then neither supplies the children with the things they need nor actually exercises the time he fought so hard to win!
So, what happens?
Well, I don’t have a magical solution for the winter coat issue, but the law DOES prescribe an answer to the question of what happens when dad asks for shared custody but doesn’t exercise it!
Virginia code 20-108.2 deals with child support awards generally, but if you dig down further, 20-108.2(G)(3)(e) provides as follows:
(e) Support modification. When there has been an award of child support based on the shared custody formula and one parent consistently fails to exercise custody or visitation in accordance with the parent’s custody share upon which the award was based, there shall be a rebuttable presumption that the support award should be modified.
Put another way, there’s a specific presumption – meaning, basically, a positive assumption – that child support should be modified if dad has a parenting plan that he has failed to follow. He has 100 days and he’s exercising 60-70? We’ll modify the child support to reflect that mom should receive child support commensurate with a parenting plan that reflects primary physical custody.
So, to summarize: you don’t have to send the diapers (or the winter coat or the Nintendo Switch) just because dad asks for it. You also don’t have to just take it when he asks for shared physical custody and just doesn’t exercise the time allowed to him.
Maybe you choose to send the things to dad’s house because it’ll make the kids lives easier. You’d be like a million (probably far more) other moms. It’s a hassle, it shouldn’t have to happen, but, ultimately, you’re the one who has the ability (and the responsibility) to keep the kids as happy as possible in seemingly impossible circumstances.
Maybe you don’t. Maybe it’s dad’s time to sink or swim, as it were, and you know he’ll figure it out if you don’t spoon feed him. After all, he deserves to know how difficult this parenting thing really is, and how much invisible labor you do to support their health, happiness, and general development.
But under no circumstances should you accept that he’ll get credit for shared physical custody, and then never exercise – or minimally exercise – his parenting time. Child support, after all, isn’t for you, or to make your life easier (though it certainly does, when you receive what you deserve) – it’s for the kids. Its in your children’s best interests to receive the support provided by the law depending on the parenting plan you’re actually following. To the extent that is different than the current agreement or court order that you’re following, you’re entitled to have child support recalculated.
It’s all there, in black and white. I copied it here, but you can read it for yourself, too: https://law.lis.virginia.gov/vacode/title20/chapter6/section20-108.2/.
For more information, to request a copy of our custody guide for Virginia moms, to register for our upcoming Custody Bootcamp for Moms seminar, or to schedule a consultation, give our office a call at 757-425-5200.