There is no shortage of ways that sly fathers will seek to avoid responsibility for their child support obligations. I’ve seen a lot of creative solutions – and even outright requests for downward deviations from the guideline amount of child support – over the years.
One of the trickiest ways I’ve seen a child’s father attempt to limit his responsibility for child support is by claiming that he’s responsible for support of another child. In some situations, this is legitimate, of course. It is entirely possible that a man has fathered a child with another woman, and that predetermined amount of child support can impact his ability to pay child support to the next child’s mother.
The child support formula includes a line for support for other children. If a father is actually paying for the support of another child, it is properly included in the formula. In most cases, the inclusion of this support award does lower the amount of guideline support required for the support of the second child. If that’s the case – if he actually IS supporting a child from a previous relationship – it will be included in the formula, and will likely adjust the guidelines downward.
The slimiest cases happen when we know or suspect that the child’s father is not actually supporting the previous child, but just trying to show that he does in order to reduce his child support obligation.
Can he do that? Can he reduce his child support to my child by alleging that he’s supporting another child?
It’s sort of complicated, but we’ll look at the law, and discuss what arguments are available to you if you find yourself in this situation.
First of all, it looks like it matters where the other child lives.
If the other child lives with mom
If we assume, like in your case, that your child’s father’s other child lives with your child’s father’s ex-girlfriend or wife, the law is pretty clear. It says:
“Where there is an existing court or administrative order or written agreement relating to the child or children of a party to the proceeding, who are not the child or children who are the subject of the present proceeding, then there is a presumption that there shall be deducted from the gross income of the party subject to such order or written agreement, the amount that the party is actually paying for the support of a child or children pursuant to such order or agreement.”
What does it mean? What could be deducted from his income would only be the actual amount that he actually really pays for the support of this other child. There would need to be an agreement or court order that sets forth that amount of support, and he’d likely need to prove that he’s actually paying that amount.
The burden isn’t on you to prove what he’s paying; the burden is on him to show that there is an agreement or court order, and that he’s making payments that comply with that agreement or court order.
Notice that I said what “could be” deducted from his income. The code here specifically says that it’s a presumption – which means that this is what the court would do as a default. A presumption, though, is rebuttable, meaning that, for good cause shown, the court can disregard this presumption in favor of something else. You could make an argument for something different, and the court could either agree or disagree with you on that point. A good argument would likely center on the ten best interests of the child factors and how receiving a lowered amount of support would impair your ability to take care of your child.
The good news, though, is that, in a case like this, dad would have to show that he has been ordered to or has agreed to make specific payments. In some of these cases, dad tries to pretend that payments like these have existed for a long time, but without specific reference to an agreement or a court order. He can’t just say, “Oh, I pay my other child’s mother $1,000 a month,” without documentation.
If the other child lives with dad
I heard about a case like this just the other day. Dad was alleging that his child from a previous relationship lived with him – even though the child’s school enrollment was based off of the child’s mother’s residence. Lies, of course, designed to reduce his responsibility for child support.
But what does the law say in these cases?
“Where a party to the proceeding has a natural or adopted child or children in the party’s household or primary physical custody, and the child or children are not the subject of the present proceeding, there is a presumption that there shall be deducted from the gross income of that party the amount as shown on the Schedule of Monthly Basic Child Support Obligations contained in subsection B that represents that party’s support obligation based solely on that party’s income as being the total income available for the natural or adopted child or children in the party’s household or primary physical custody, who are not the subject of the present proceeding. Provided, however, that the existence of a party’s financial responsibility for such a child or children shall not of itself constitute a material change in circumstances for modifying a previous order of child support in any modification proceeding. Any adjustment to gross income under this subsection 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, as determined by the court.”
If this other child lives with dad, then what would be presumed to be deducted from his income would be the amount that the code provides in 20-108.2(B). You can look at the table of values here. Let’s take an example, and assume that dad earns $3,000 a month and there’s just one other child from one other mom. In a case like this, we remove biological mom from the equation, and just remove from his income the amount that he’d be responsible for paying for support based off of his income and the number of children he’s supporting.
Based on the table, at $3,000 per month, $498 per month would be deducted from his monthly gross income.
Again, though – that’s a presumption. If you read on to the end, you’ll see that the code also specifically says that, “[a]ny adjustment to gross income under this subsection 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, as determined by the court.”
So – that’s your argument. Adjusting his gross income impairs your ability to maintain “minimal adequate housing” and “provide other basic necessities.”
Of course, then you’ll want to show that either (1) that other child does NOT reside with dad, and therefore this standard should not be applied, or (2) that you can’t maintain housing or provide basic necessities for the child if this standard is applied. The burden of proof is technically his to prove that the child is living with him, but it may be that he’s prepared to lie about it. This gets technically complicated, so it’s probably a good idea at this point to consult with a licensed Virginia custody attorney who can help make sure you get the child support you deserve.
At the end of the day, Virginia child support obligations are not all that generous. If he’s trying to reduce the amount that you receive, it is likely that it will have a pretty substantial impact on your child’s quality of life. If you’re concerned about action that your child’s father is taking to reduce the amount of child support you receive on behalf of your child, give our office a call at 757-425-5200.