Virginia is not a state that follows a presumptive 50/50 custody model. In Virginia, the court is supposed to consider all forms of physical custody – primary, shared, and split – equally before making a decision in line with the “best interests of the child.”
That doesn’t mean, though, that we don’t see a lot of 50/50 custody. There are many reasons for this, and, of course, only one of those reasons is loving the children and wanting to spend as much time with them as possible. For many others, particularly parents who were not involved BEFORE child support became part of the conversation, it ultimately comes down, at least in part, to how much child support they’ll pay.
I hate to be cynical, but support really does ruffle the feathers of a lot of previously uninvolved parents – particularly dads.
Let’s talk about it.
Does the amount of parenting time you have impact child support?
Technically, parenting time and child support are separate issues. The court is supposed to make a decision about custody and visitation based on the best interests of the child. Child support is then tied to the amount of parenting time each parent has, with primary physical custody awarding the custodial parent with the max amount of child support under the statutory calculation and shared physical custodial child support being awarded on a sliding scale depending on how much time each parent spends with the child(ren).
Still, there’s no denying they’re intertwined; it won’t take a lesser or non-custodial parent long to realize the tie between parenting time and child support, and then to make the decision to go after more parenting time to avoid more child support.
In that sense, they are linked, even though – from a legal perspective – they’re separate issues. It’s also part of what you should consider if you want to put your child’s father on child support for the first time. There’s always a chance he’ll file a retaliatory custody and visitation petition.
Will he ask for more parenting time even if he doesn’t want it – or intend to exercise it himself?
I can’t predict the future and I don’t know him, so I don’t know for sure. But whenever child support comes up, it is definitely a possibility.
It’s impossible to predict an outcome, too, as so much depends on your unique circumstances, but a court does love to see an involved dad. His lack of involvement before now may not be used against him as much as you might like, and it’s possible that you’ll wind up sharing more parenting time than you have before.
Keep in mind, though, that shared custody is not necessarily 50/50 custody. Technically, shared custody is anything where the non custodial parent (the parent who has the child less) has 90 or more days. So, anything from 90 days at a minimum to 182.5 days at a maximum is considered shared custody.
In case you haven’t done the math yet, even a 70/30 split falls into shared custody territory. If you’re looking at parenting plans and trying to decide what might be best for you and your family, it’s worth looking at options – from 80/20 to 70/30, 60/40 and even 50/50 – to make sure that you have something in place that’s going to work for both you and your children.
In a 50/50 custody arrangement, does dad pay child support?
Child support could be awarded at any level, but it depends on each party’s pro rata income share, the amount of parenting time they have, what they’re paying for child support for other children, the amount of work related childcare, and the health insurance costs for the children only.
Just because it’s 50/50 doesn’t mean that there’s no child support. It could mean that, if parenting time were exactly equal and incomes were equal, too, but it doesn’t usually. Even in a 50/50 situation, usually someone is paying child support. If dad is the higher income earner, then it’s dad.
If he’s still paying child support, what difference does it make? Why is he fighting me on custody?
Well, under a primary physical custodial situation, he’d pay the max child support – but once he reaches that benchmark of 90 days in a calendar year, he’s in shared custody territory. At that point, the amount of support he pays starts to go down because, theoretically at least, he’s sharing more of the day-to-day costs of the children. He’s feeding, clothing, sheltering, and entertaining them during his (now more significant) parenting time, while mom has less time. So, this results in less child support.
Even if he’s still paying support, it may be significantly less support, and that could be a major motivating factor.
Will he win on custody, if his only motivation is to reduce child support?
Well, if he admits that his only motivation is to reduce child support, I don’t think the court would look too favorably on it. But, also, chances are he’s probably smarter than that. He’ll say he just wants to be a dad. He’ll say it’s best for the kids to have two present parents. He may even also say – as so many love to – that single moms have bad outcomes for kids so it’s best for him to be involved.
Whether those arguments are successful will ultimately depend on the judge; I can never predict outcomes. I can predict, though, that he is very unlikely to admit that it’s about money for him, and he might even argue that it is about money for you. (Though my response to that would always be that I was doing it long before child support was part of the equation, so obviously the fact that I am continuing to meet the child’s needs now suggests that money was never the point – the child’s best interests is and always was.)
He may very well petition the court for more parenting time, whether now or in the future, to keep his child support obligation as low as possible. For more information, to schedule a consultation, or to request a copy of our custody book for moms, give our office a call at 757-425-5200.