by Michael F. Callahan

In Virginia, you need a material change in circumstances to obtain a change in child support.  A material change means one that is 1) relevant to child support and, 2) of sufficient magnitude to justify a change in support.

In a modification case, the court applies the child support guidelines to the new facts.  In an administrative review of child support, support may be modified if the new determination changes support by 10% or more and at least $25.00.

There is no such minimum change rule in court cases, but the process requires time, effort and money, so minor increases or decreases are probably not worth pursuing

by Michael F. Callahan

Child support can be modified in Virginia post-judgment if there has been a material change in circumstance since entry of the order setting child support.  Section 20-108 of the Code of Virginia provides that the court may modify child support or custody as the changed circumstances of the parents and the benefit of the children may require.

The Court can act upon the petition of a parent, a probation officer or the Department of Social Services, setting forth the reasons for the relief sought.  The court can also act on its own initiative but this is something we have never seen.  Support can be retroactively modified only from the date that notice of the pending petition requesting modification has been given to the other party.

by Michael F. Callahan

We warned in Changing Child Custody that it was hard to know in a close case whether a material change in circumstances would warrant a change in child custody until the judge decides.

In Changes in Circumstances Mean Changes in Custody we provided a list of changes compiled over the years that were “material” enough to result in a change in the custody agreement or order.  The list included “A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.”

A recent Virginia case, Friedichs v. Brown, highlights the problem.  Mr. Fredrichs argued  that the following changes in circumstances warranted a change in custody:

(1) the children’s development had evolved,

(2) the children had a closer relationship with him, and

(3) the mother was being uncooperative.

The circuit court ruled that these were not material changes, dismissed his complaint, and awarded the mother $43,462.20 for the attorney’s fees she incurred defending.  The Virginia Court of Appeals affirmed.

by Michael F, Callahan

My last post said sometimes you don’t know whether a change in circumstances is material until after trial when the judge rules.  Perhaps this will help.  Here is a partial list, compiled from our cases over the years, of changed circumstances that courts have found, or both parents conceded, were material:

  1. One parent wants to relocate with the child.
  2. One parent is relocating without the child so the current timesharing or visitation schedule will not work.
  3. The parents share physical custody equally, live in different school districts and the child is nearing kindergarten age.
  4. One parent’s mental health has deteriorated
  5. Remarriage of one parent if it affects child-rearing.
  6. Substantial change in employment location/hours of work.
  7. A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.

If one or more of these changes are present and the current custody arrangement is no longer in your child’s best interest, it is time to seek a change. Start by communicating this to the other parent and inviting feedback. If you don’t make progress with direct discussions, consider suggesting that you and your former spouse work with a mediator skilled in child custody matters. Custody disputes are well suited for resolution through mediation. Also, look at the dispute resolution procedures, if any, in your custody agreement. A good family lawyer experienced in custody matters will be helpful to you throughout this process and will be essential if you bring your custody matter to the court for resolution.

Father’s Rights for a Sleepover?

Dorene and Richard Ward of Georgia were divorced in March of 2007 and Richard was awarded primarily physical custody of the parties’ two children.

In 2008, Dorene filed an action to obtain sole custody of the children.  She lost and the court amended her visitation to provide that she “shall not have any overnight male guests while the minor children are present.”

Dorene appealed contending that this provision was overbroad, because on its face it prohibits her from having her father, a brother, a new spouse, or even the children’s father spend the night at her house while the minor children are present.

The appeals court agreed.  It said a trial court has discretion to place restrictions on custodial parents’ behavior that will harm their children.  While the trial court could limit visitation if it finds that the children would be adversely affected if any boyfriends of Dorene spent the night with her, the restriction against “any overnight male guests” would prohibit Dorene from having visitors with whom she has no romantic relationship and for whom the record does not support a finding of any harmful effect on her children.

Ward v. Ward, No. S11A0437 (Georgia Supreme Court, May 31, 2011)

Father’s Rights Limited Related to Child Support

Fatemeh and Thomas entered into a marital settlement agreement in 2006, which required Thomas to pay $1200 per month in child support for three years and then $750 an month into a college educational account for the children.

Shortly before the three years was up, Fatemeh filed a petition to modify child support claiming the provision converting the $1200 monthly child support payment to a $750 payment into a college educational account was void as against public policy.

The court said the provision would have violated public policy if it relieved Thomas entirely or permanently from his duty to support his minor child.  A parent may not waive or otherwise contract away their child’s right to support.  But that does not prevent parents from making contracts or agreements concerning their child’s support so long as the best interests of the children are served.  Since the payment was directed into an account for the benefit of the child, there was no public policy violation in the provision of the settlement agreement requiring the child support payment of $750 to be deposited into a college educational account.

Laussermair v. Laussermair, No. 4D09-4823, 36 Fla. L. Weekly D448
(Florida District Court of Appeal, Fourth District, March 2, 2011)

Darryl Payne of New Jersey was married with three adult children and living with his wife when he began dating Emma Walden.  Darryl and Emma had a daughter together.  When they split up, Emma  got custody of the daughter and Darryl got visitation on Saturdays.

During visitation, the daughter would spend some time with Darryl, his wife, her half siblings and some time with Darryl’s new girlfriend and the new girlfriend’s son.  Emma was opposed to her daughter being exposed to such behavior and asked the court to require supervised visitation.

The trial judge threw the case out with a brief decision, “Your application to modify visitation and [for] supervised visitation is denied.  Thank you very much. Have a pleasant holiday.”

While the Appellate Court said the trial judge should have explained his decision better, Emma had brought this objection up in previous hearings and had not shown a change in circumstances had occurred that would justify changing visitation to supervised.

Read more at New Jersey Family Law.

Vickie Duckworth and Darren Kamp got married in 1983, and had three children together.  Then Darren decided to have a vasectomy in 1987.  Vickie became pregnant again in 1992.  Although Darren knew about her affair, he decided to treat the child as his own.

The couple stayed together until 1998 and filed for divorce in 1999.  In their separation agreement and divorce, Darren stated that he was the father of all four children.

In 2005, Vickie filed a motion to modify child support because Darren was making more money.  Darren had had enough.  In his response he said that he was not the biological father of the fourth child, and asked for a DNA test.  The court granted his request, and the DNA test came back negative,  Since Darren was not the biological father, the Court said he was not required to pay child support.

The Maryland Court of Appeals reversed, and sent the case back to the trial court for further proceedings, saying the judge must first consider whether or not a DNA test was in the best interests of the child.  And those considerations should take into account the length of time that Darren had maintained a father-child relationship.

Kamp v. Dep’t of Human Services, Maryland Court of Appeals, September 21, 2009

Mary Connole married Ernst DeGroot in 1984 in the District of Columbia.  They had two children.  Difficulties arose between them and they decided to separate in 1997 and they were divorced in 1999.  Neither party asked for child support, but Ernst paid $600 a month in child support to Mary until 2004 when the oldest child turned 19.  Then he unilaterally reduced the payments to $300 a month and Mary filed a motion in DC to award child support.

The trouble was that no one still lived in DC.  Mary and the children now lived in Maryland and Ernest now lived in Virginia.  The trial court denied the motion finding it had no jurisdiction over the subject matter.

The DC Court of Appeals reversed.  First it looked at prior cases in the District of Columbia holding the court does not lose jurisdiction to modify child support when the parties move to other jurisdictions.  The court then turned to the Uniform Interstate Family Support Act (UIFSA) to see if it limited the court’s powers.  The court noted that UIFSA did say that a court loses its powers to modify its child support orders when the parties leave the jurisdiction.

However, in this case, Mary was asking the court to establish an initial child support order in a divorce it had already decided.  The court could find nothing in UIFSA that prevented the DC court from doing just that.

While many clients think the trial resolves everything, most lawyers know that is not the case.  If the mother of your children was difficult before the trial, the trial is not going to make her into a different person.   She will still be difficult, you will have disputes regarding the children and you will need to resolve them somehow.

The court has the power to enforce its orders or the agreement of the parties.  So the court can order a mother to allow visitation or can order a father to pay child support.  However, the court will only do this if one of the parties asks it to do so by filing a petition.  The other party will then have an opportunity to respond and a hearing to present their side to the judge.

It is always better to resolve disputes yourselves if possible.   If you have a settlement agreement, you can include a provision that disputes will be submitted to mediation before taking the other party back to court.

You can also include a Parenting Coordinator in an agreement.  This would be someone that the parties can take their disputes to and let them make a decision.  This is less costly and time consuming than litigation.

If you cannot resolve your dispute through one of these methods, then you must go back to court and ask the judge to decide.  In some cases, it may be like trying your case all over again.  In addition to resolving post-trial disputes, the court has the power to modify legal custody, physical custody, timesharing and child support after the trial, if circumstances change and the modification would be in the best interests of the child.