INFORMATION CENTERS


FREQUENTLY ASKED QUESTIONS IN FAMILY LAW

Q:  What is custody?
A:  Custody is a legal determination of how the parties care and make decisions for minor children.  There are 2 types of custody, Legal and Physical.  Legal custody determines which parent(s) will participate in making major decisions affecting the children, such as decisions about the child’s education, healthcare and well-being.  Physical custody involves who will care for the child on a day-to-day basis.  In Virginia, if a parent has the child less than 91 days per year, this is considered sole custody.  In the District of Columbia, if a parent has the child less than 128 days per year, this is considered sole custody.  Parents share Joint Custody if each parent has the child 91 days or more in Virginia, or 128 days or more in D.C.  Even if the parents have Joint Custody

Q:  How will the court determine which parent gets physical custody or visitation?
The courts primary concern is the best interest of the child in determining custody and setting a visitation schedule.  To make determine child custody and visitation, the court considers several factors, including:

• The child's age;
• The child's gender;
• The child's physical and mental health;
• The parents' physical and mental health;
• The parent’s role in the child’s upbringing;
• The special needs of the child
• The parent's ability to provide the basic necessities, such as food, shelter, clothing, and medical care;
• The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and
• If the child is above a certain age, the child's preference.
• Any history of abuse
• And more.

Although it used to be the case, any preference for the mother as the primary custodian is barred from a determination of child custody and visitation. 

Q:  How is child support calculated?
A:  Child support is calculated based upon guidelines that are established by the state.  Generally, child support guidelines takes into account the incomes of the parties, the number of days each party has the child, and other expenses related to the child, such as health care and daycare costs.  Although each state has set guidelines, the courts have discretion to deviate from the guidelines, if the circumstances support a deviation.  In setting support, the courts generally consider factors such as the parent’s needs, the paying parent’s ability to pay the amount of support, the needs of the children, and the standard of living for the child during the parents’ marriage, if applicable.  Guidelines are often adhered to, however the courts usually verify that the child support award is fair.

Q:  Can child support be modified?
A:  Yes.  In order to modify child support, there must be a material change in circumstances, and the change being sought must be in the best interest of the child.  Note that a voluntary loss of employment or demotion cannot form the basis of a modification of child support.  The party seeking the modification cannot intentionally do something to lower his or her income in order to minimize the child support obligation.  It may be possible to impute income to a party based upon the earning capacity.  The concept of imputing income should be discussed with a family law attorney.

Q:  Can child custody and visitation be modified?
A:  Yes.  Child custody and visitation is always modifiable so that the child’s best interest is served.  In order to modify child custody and visitation, there must be a material change in circumstances, and the change being sought must be in the best interest of child.  You should discuss whether facts or changes in your case constitute a material change in circumstances with family law attorney.