Is custody different without a divorce case?

A friend of mine (it’s funny how “friends” crawl out of the woodwork when they have a pending divorce or custody case) recently messaged me on Facebook to ask me about her current custody case. She and her child’s father were never married, and they had a very young baby together when they went their separate ways.
Now, of course, things are difficult. He doesn’t want to work (or pay child support), and she’s doing everything she can to provide for herself and her child. She’s got some money in savings, and her expenses are minimal because she lives at home with her mom, but she’s not exactly setting the world on fire money wise. Things are tight, and she’s afraid.
Her child’s father is pretty unwilling to pay for anything that the court doesn’t require him to pay, so she knows he’s not going to be helpful as the child grows up. He’s threatening to take her back to court to modify custody, visitation, and support, and he tells her that, when he does, he’s going to use information that he has gathered about her savings accounts and the fact that she doesn’t have to pay for her own living expenses to lower his child support obligation. He’s also going to ask for more time with the child, so he can get into a shared custody calculation and further reduce his child support obligation.
She’s messaging me, frantically, asking about her case. She says he says he has a friend who went through this as part of his divorce, and that, in that case, the court looked at an income and expense sheet to help determine support. She wants to know whether it really is possible that the court will look at her expenses in determining what child support will be, and whether he’ll be able to claim more time with the child and further reduce the child support that he’s complaining about paying. Is custody, visitation, and support really all that different when you’re dealing with a divorce versus parents who never married?
Unfortunately for my friend, Mara, she’s in for a long road. As you’re probably already aware, child support, custody, and visitation aren’t the type of thing you just determine once and then move on with your life. Most of the time, especially in cases where things are a little on the contentious side (like it seems like they are here), parents are in and out of court throughout their child’s childhood. Anything relating to the kids is always going to be modifiable based on a material change in circumstances—and what constitutes a material change in circumstances is going to be broadly construed so that the court can be sure that it’s addressing the best interests of the child. (So, in other words, when you ask yourself “would this be considered a material change?” the answer is likely yes, because, in the court’s view, to say no might mean that the child’s best interests aren’t being served; it is in the child’s best interests to re-evaluate the situation based on the parent’s changing circumstances.)
The only caveat here is that, generally speaking, the court doesn’t entertain motions to modify custody, support, or visitation sooner than 6 months after the last order was entered. So, in most cases, you’ll have to wait at least 6 months between determinations—but, still, every 6 months is an awful lot to go back and forth to court.
It doesn’t matter whether you were never married or whether you’re divorcing your child’s father; the process for petitioning to modify an existing child custody, support, or visitation order is the same, and can be modified with the same frequency.
Really, in most cases, whether you were married or not, the process isn’t all that different. Just like in divorce, you either reach an agreement or you go to court and let a judge decide. If yours is a divorce case, you’ll be in circuit court, and if yours is a custody case alone, you’ll be in the juvenile and domestic relations district court (unless you appeal, and then you’ll be in circuit court, too!). That’s a little different. Typically speaking, the juvenile court is less formal and more user friendly, whereas the circuit court is more formal and more likely to be a place where you’ll require an attorney. Attorneys handle cases in both the juvenile and circuit courts, but more litigants plan to represent themselves in juvenile court than circuit because they know that, if they lose, they’ll have an automatic appeal to circuit court (at which time they could hire an attorney if they really wanted).
If you reach an agreement, it’s a much easier process and you have more control over the outcome. Rather than letting a judge decide, the two of you discuss how you’d like to share your parenting time with the child, and even figure out things like who gets to claim the child as a deduction on his or her taxes.
Mara was really concerned, too, that her child’s father was going to bring in evidence of her living arrangements to figure out whether he would be able to reduce his child support obligation. His argument was that, in a divorce case he had recently seen, an income and expense sheet had been filled out and provided to the judge, which detailed almost everything that each party spent money on. It included money on rent or mortgages, money on daycare, groceries, entertainment, utilities, and more. He told Mara that this method would certainly be used in their case, since she was living at home and her monthly expenses were lower than they would otherwise be. “I shouldn’t have to pay extra for you to live at home,” he said snidely to her.
This is one example where divorce and custody cases ARE different. An income and expense sheet is something that is used exclusively in a divorce case, usually at the pendente lite (temporary support) hearing. Because the whole purpose of the pendente lite hearing is to make sure that all the bills are being paid and the proverbial wolves are being kept from the doors, the judge entertains evidence related to the income and expenses of the parties. At this stage, temporary child AND spousal support are calculated.
In a custody case where mom and dad weren’t married, there is no spousal support. Obviously. You don’t have to provide spousal support to a person who was never your spouse.
Child support, whether it’s determine in a divorce case or a standalone custody case, is based on a formula. Depending on how much money you and your child’s father earn combined, you’ll be responsible for paying a certain amount of child support per month. Then, you take that number, and you share it pro rata based on your incomes. That means, essentially, that if he earns 60% of the income, he’ll pay you 60% of that guideline figure.
Though in a divorce case we do often use income and expense sheets, the judge is unlikely to deviate on the amount of child support awarded. Though (theoretically, at least) he could, it’s more likely that, if a deviation were going to be awarded (which is very rare), it wouldn’t be determined until the divorce trial took place. The income and expense sheet might affect spousal support, but it’s unlikely to affect child support. So, whether we’re talking about a divorce or a custody case, the fact that mom moved back in with her parents and has minor monthly expenses isn’t all that relevant for child support. It may (in fact, it will likely) be a factor in calculating spousal support, but child support is based off a formula that is applied very strictly.
In this way, divorce cases are different from standalone custody cases.
Mara’s ex also threatened to take more time with the child to reduce his child support obligation. That’s possible. Under Virginia law, the child support formula depends on the type of custody arrangement. In a primary physical custody scenario, where the non custodial parent (the parent who has the child less) has 89 or fewer days with the child during the year, child support is at it’s highest. Under a shared physical custody scenario, on the other hand, where the non custodial parent has 90 or more days with a child in a year, child support is determined on a sliding scale depending on how much time each parent spends with the child. A dad who has 90 days with the child will pay less than a dad who has 89 or fewer days with the child (where mom has primary physical custody), but will pay more than a dad who splits the year 50/50 with his child’s mother and has 182.5 days.
So, technically, if he asks for more custody and he gets it (and winds up with 90 or more days in a year), his child support obligation will decrease. Will he get more time? It really all depends on the facts of your specific situation. It depends on the ages of the child(ren) involved, too. What’s appropriate for a baby is different than what’s appropriate for a school aged child or a teenager.
In most ways, a divorce case isn’t really different from a custody case—at least as it relates to how custody, child support, and visitation are determined. You really have two options: (1) you reach an agreement yourselves, or (2) you litigate it in the courts and let the judge decide.
For more information on custody cases, or to sign up for our custody seminar for moms, designed to teach Virginia women how to represent themselves in custody cases at the juvenile court level, give our office a call at (757) 425-5200.

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