Material Change in Circumstances Required to Change Virginia Child Support

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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 James J. Gross

Modifying Child Support in Virginia

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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 James J. Gross

Changes Not Material Enough to Modify Custody

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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. This post reviews changes not material enough to modify custody.

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 Callahan

Change in Circumstances Means Changes in Custody

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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 or divorce attorney 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.

/by Michael Callahan

Overnight Guests During Visitation

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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)

/by James J. Gross

Father Can Pay Child Support to College Fund

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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)

/by James J. Gross

Mother Loses Motion for Supervised Visitation

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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.

/by James J. Gross