Calculating Days in Virginia Child Custody

Calculating Days in Virginia Child Custody

Child support is complicated. On the one hand, in many cases it isn’t an issue, because it’s based on a formula, and the formula is binding on our courts. On the other hand, it is an issue, because when you get into shared physical custody, for example, the level of support a paying parent would have to pay is less than under a primary physical custody arrangement. So, even if it IS straightforward on its face, that doesn’t mean that there isn’t a whole lot of bickering going on behind the scenes about how many days each parent gets – because that has a lot to do with how much child support will be paid.

It’s sad, but true. When we start talking about child support, we often have to start talking about how many days each parent gets.

It’s not so much that it’s something that we see in either the order or the agreement; we don’t include that the non custodial parent (the parent who has the child less) has a certain number of days in a year, like a quota that he has to meet. But we do classify physical custody as either primary physical or shared, and that has to do with the level of support.

Primary Physical versus Shared Physical Custody

In Virginia, you have legal custody and physical custody. Legal custody refers to the right to make three types of decisions on behalf of the child: (1) non emergency medical care, (2) religious upbringing, and (3) education. Most people don’t spend too much time fighting over those issues.

Where the fights DO break out is over physical custody, because that has to do with where the child spends his or her time.

Physical custody can be primary to one parent, or shared to both. In a primary physical custody scenario, the non custodial parent has the child for 89 or fewer days during the calendar year. In a primary physical custody scenario, the non custodial parent pays the maximum level of child support under Virginia law. (Though don’t get too excited; the guidelines aren’t overly generous regardless.)

Shared physical custody, on the other hand, happens when the non custodial parent gets more than 90 days with the child in a calendar year. That doesn’t mean that the year is split 50/50 – though it’s possible! It just means that the non custodial parent has somewhere between 90 and 182.5 days. In a shared physical custody scenario, the non custodial parent pays child support based on a sliding scale – so the more time he (assuming it’s dad here) has, the less child support he pays. The theory there is that, if he has more time with the child, he’s paying for more of her day to day needs, so the custodial parent has less child-related expenses. I know, I know – don’t shoot the messenger! You’re probably thinking, “That’s crap! He doesn’t pay for anything! I buy all the clothes, shoes, food, toys, and even send it all over to his house because he has nothing!” (And sometimes you don’t even get back what you sent, right?) I know, I know. I hear this from moms all the time – but that’s how the law works, and there’s not much I can do besides encourage you to write to your representatives to encourage legislative change.

Regardless of our feelings about it, that is how child support will be applied.

So, how are days calculated in Virginia child custody?

So, when you’re proposing any kind of child custody arrangement, you should be aware of the number of days you’re offering. It’s not hard to meet that 90 day threshold, though – pretty much anything other than every other weekend is going to get you there. Aaaaaaand, it should probably also be said that judges seem to really, really like shared physical custody these days. In fact, in most of my contested custody cases, we wind up with shared custody. The question is less whether or not shared custody will be awarded, but to what degree it will be awarded.

The number of days matters, because shared custody support is calculated on a sliding scale. So, if dad has 90 days of time with the child, he’ll pay more than if he has 182.5 days with the child. That means that a lot of parents bicker a LOT over each and every single day. If I’m being cynical, I might say that it’s because they want to make sure they minimize the child support they’re paying, or maximize the child support they’re receiving. If I’m being sweet, I might say it’s because they really just want to spend as much time as possible with their child. In reality, it’s probably a mixture of both, to varying degrees, depending on the day and the level of animosity towards the child’s other parent.

Still, you should know how to calculate days – because it’s relevant. Days are calculated as whole days (a 24 hour period, obviously), or half days (usually awarded if someone picks the child up after school and has an overnight). Lesser periods of a day are not calculated. A Wednesday night dinner, for example, does not count as custodial time; it has to be a minimum of a half a day to count towards the end of the year total. We don’t divide days up into smaller portions than ½.

The number of days then go into a shared custody calculation.

What if he doesn’t exercise visitation according to the shared custody guidelines?

You’ll have to take him to court to modify child support.  It’s a good idea to document the visitation he misses, so that you have some evidence. A simple log should do the trick.

It’s not foolproof; many judges will give dads chances over and over again to attempt to parent their children. It may not seem fair, but it’s out of deference to the belief that a child’s best interests are most commonly met when both parents are involved in the child’s life. It’s annoying, but it’s something you should be prepared for. It’s a good idea to discuss your chances of success with an attorney before you file for a modification, too.

For more information, to request a copy of our custody book, find out about our custody seminar, or to schedule an appointment with one of our attorneys, give our office a call today at 757-425-5200.

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