Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || email@example.com
A common misconception in family law is that loss of child custody amounts to a termination of parental rights. These are very different terms with very different legal consequences:
LOSS/LIMITATION OF CHILD CUSTODY: You lose the physical custody of your child (he/she lives with the other parent full time) and/or the ability to make decisions as to your child’s daily care. However you still have the right to ask for visitation. You also maintain the right to challenge or change the custody determination at a later date. You legally still have a say in influencing your child’s values, religion, schooling and healthcare, and your child can still automatically inherit from your estate or vice versa absent a will saying otherwise. And, most importantly, you maintain responsibility to support your child financially (i.e., you are not excused from child support!).
TERMINATION OF PARENTAL RIGHTS: You lose all of your rights over your child, and with it any right to be involved in your child’s life. Effectively, you are no longer legally recognized as the parent, meaning you have absolutely no rights of visitation, and the child will no longer be able to inherit from you or vice versa absent a will saying otherwise. This also means you no longer have the responsibility to give the child any financial support.
The bar for court-ordered termination of parental rights is also much higher than a change in custody arrangements. For custody, a material change in circumstances for either or both parties is necessary. However, a complete termination can only arise from clear and convincing evidence of abuse and neglect.
While a parent can voluntarily give up custody rights, it is not possible to do the same for parental rights. That is, you cannot “sign over” your parental rights to the other parent. Only a court can terminate parental rights, and it will only do so if there is a third person ready to “take over” care and support for the child. A proceeding for termination of parental rights must start with a petition to the Juvenile and Domestic Relations Court, after which the judge will appoint a guardian ad litem for the child and the Department of Social Services will begin a thorough investigation.
Parental rights are also terminated as a matter of course in adoption cases. In cases of giving up a child for adoption to a non-relative, your family members also lose rights of visitation and inheritance.
Further information: Virginia Legal Aid Society: Termination of Parental Rights
Determining child support is mostly a mechanical process. The parents present the court with their gross monthly incomes and the court applies them to the guidelines based on the percentage of the whole each parent makes. The guidelines, which are revised from time to time, are the default for determining support, but the court has some leeway to adjust amounts based on mitigating factors. These include actual monetary support from other family members, special needs of the children, and earning capacity of the parents.
I’ve said it before, but it cannot be said enough that it is important to remember that child support is not for the parents but for the children. The court will take its #1 rule in proceedings involving children — do what is in the best interests of the child — and apply it to its determination of child support. Unlike other proceedings like custody or visitation, whatever personal feelings and acrimony that exist between the parents are not a consideration — it’s all about numbers.
Child support schedule – Virginia: Va. Code § 20-108.2.
Mitigating factors: Va. Code § 20-108.1(B).
Child support schedule and mitigating factors – DC: D.C. Code § 16-916.01.
Child support is a big deal. State and local governments go to great lengths to protect the “best interests” of children, especially in family law statutes. So it’s no surprise that just about every state has an “imputed income” provision in their child support guidelines.
Imputed income is simple — if a non-custodial parent decides to voluntarily become unemployed or underemployed in for the purpose of lowering his/her support responsibilities, the court can assume the income that he/she would have made and add it to its child support determination. The reason is also simple — to prevent unscrupulous people from cheating the system and to protect children from poverty.
It is always important to remember that child support payments are not for the benefit of the parent, but for the children. Often, children end up becoming pawns and innocent bystanders when parents fight over finances. Maybe if more parents thought about their children’s well-being there would be a little less acrimony in child support cases.
D.C. Code § 16-916.01(d)(10): If the judicial officer finds that a parent is voluntarily unemployed or underemployed as a result of the parent’s bad faith or deliberate effort to suppress income, to avoid or minimize the parent’s child support obligation, or to maximize the other parent’s obligation, the judicial officer may impute income to this parent and calculate the child support obligation based on the imputed income. The judicial officer shall not impute income to a parent who is physically or mentally unable to work or who is receiving means-tested public assistance benefits. The judicial officer shall issue written factual findings stating the reasons for imputing income at the specified amount.
Va. Code § 20-108.1(H): In any proceeding on the issue of determining child or spousal support or an action for separate maintenance under this title, Title 16.1, or Title 63.2, when the earning capacity, voluntary unemployment, or voluntary under-employment of a party is in controversy, the court in which the action is pending, upon the motion of any party and for good cause shown, may order a party to submit to a vocational evaluation by a vocational expert employed by the moving party, including, but not limited to, any interviews and testing as requested by the expert. The order may permit the attendance of the vocational expert at the deposition of the person to be evaluated. The order shall specify the name and address of the expert, the scope of the evaluation, and shall fix the time for filing the report with the court and furnishing copies to the parties. The court may award costs or fees for the evaluation and the services of the expert at any time during the proceedings. The provisions of this section shall not preclude the applicability of any other rule or law.
Brody v. Brody, 16 Va. App. 649, 432 S.E.2d 20 (1993). In an initial proceeding for child support, the unemployed/underemployed parent must prove that his/her situation was not voluntary. Also, if childcare is available, a unilateral decision to stay at home is not sufficient to show that unemployment is involuntary. Finally, the court can impute income from employment recently and voluntarily terminated.
As I mentioned in a previous post, at this point in our history same-sex divorce can be a very difficult proposition, especially in a jurisdiction that does not recognize gay marriage. Complicating matters are potential ancillary issues that are routine (or at least as “routine” as they could be, as there are laws governing them already) in opposite-sex marriages.
Take the case of Lisa Miller and Janet Jenkins, a lesbian couple who obtained a civil union in Vermont in 2000. The couple had a child, born to Miller, in 2002, but their relationship ended in 2003. After the dissolution of the civil union, a Vermont court awarded physical custody of the child to Jenkins, with visitation rights to Miller. Miller then fled to Virginia to avoid complying with the court order. She filed suit in Frederick County (Va.) Circuit Court, which awarded her sole custody as the birth mother based on Virginia’s 2004 Marriage Affirmation Act. Meanwhile, a Vermont court found Miller in contempt and awarded Jenkins full parental rights, which the Vermont Supreme Court upheld. Jenkins, in turn, appealed to the Virginia Court of Appeals, which overruled that the circuit court, saying that the trial judge should not have ruled on custody at all, citing the federal Parental Kidnapping Prevention Act declaring that once custody is established in one state, a court in another state must give “full faith and credit” to the original court’s ruling and thus cannot assume jurisdiction.
The important result from this sad case is that Virginia must honor another state’s custody order, even if it is contrary to Virginia statutes, because federal law prevents persons unhappy with child custody orders from seeking favorable rulings in other states. This is a measure of good news, as Virginia cannot apply its own laws restricting same-sex marriage to existing child custody orders in other states. In the big picture, it shows that at least in the subject of child custody there is uniformity in enforcement of laws.
For more information I used for this blog on Miller v. Jenkins, click on the following links:
The American Civil Liberties Union’s (ACLU) summary of Miller v. Jenkins
ACLU Virginia’s summary
The Virginia Court of Appeals’ opinion for Miller-Jenkins v. Miller-Jenkins
Lambda Legal’s summary of Miller v. Jenkins
“The Strange, Sad Case of Miller-Jenkins v. Miller-Jenkins” (Salon.com, December 23, 2009)
To paraphrase the old philosopher Heraclitus, change is the only constant in the universe. Everything in nature is in continuous movement, and one never sees the exact same thing twice. You can go to the same spot overlooking the Grand Canyon a thousand times, but each visit is unique, a little (or a lot) different. No matter how similar it looks, if you examine your surroundings more closely, you’ll find differences both obvious and subtle.
In family law, change is paramount in cases of child and spousal support. After the judge’s initial support decree, the parties have two choices: live with it until it expires on its own, or try to amend it. Both the Virginia and District of Columbia codes provide for modification of support orders if the party asking for it can show a material change in circumstances. That change can be as major as a new (or loss of a) job, marriage, health problems — or something as mundane as the passage of time. If you show the judge that things are different, you can get more (or be compelled to provide less) support for yourself or your children.
Support guidelines are generally mechanical in nature — you both supply income and assets/liabilities information and, for the most part, the judge chooses the number that comes up. The judge has some leeway for extenuating circumstances like those I mentioned above. When you seek a support order modification, be sure to tell your attorney everything you can think of that can or actually does affect your financial status, no matter how mundane. Because even the smallest change can be significant.