6.8 Child Support

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

6.8 CHILD SUPPORT

6.801 Sequence of Determining Issues. When child support is sought along with spousal support and the equitable distribution of property, the court must determine these issues in the proper sequence. The equitable distribution of property is determined first. Spousal support is determined after the equitable distribution decision. Child support is determined after spousal support. ⁸⁵

6.802 Persons Liable for Child Support. Parents are obligated to support their children. ⁸⁶ The duty to support the child is owed by both par-ents. ⁸⁷ This duty applies to parents by birth and parents by adoption. ⁸⁸ It

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applies to parents who are unmarried as well as to parents who are married. The duty to support a child applies even if the marriage between the parties is a bigamous marriage and, thus, void ab initio. ⁸⁹ Grandparents have no duty to support their grandchildren. ⁹⁰ The procedural and substantive requirements of section 16.1-283 must be met to terminate a party's parental rights and to give a court jurisdiction to do so. Parties cannot agree to terminate their parental rights or child support obligations, and an order entered based on such an agreement is a nullity. ⁹¹

Establishing the identity of the child's parents may be necessary in some cases. Establishing the parent-child relationship is governed by sections 20-49.1 through 20-49.10 of the Virginia Code. The relationship between a child and a woman may be established prima facie by proof that she gave birth to the child. ⁹² If proof of the child's birth by the mother is unavailable, the parent-child relationship may be established by other means set forth in sections 20-49.1 through 20-49.10.

The parent-child relationship between a child and a man may be established by the results of scientifically reliable genetic tests that affirm at least a 98-percent probability of paternity. ⁹³ Paternity may also be established by a voluntary written statement of the father and the mother made under oath acknowledging paternity. The statement must show that the signers were notified of their rights and responsibilities, including the right to rescind the written statement. ⁹⁴ Where neither of these two methods of establishing paternity is available, the paternity relationship may be established through clear and convincing evidence including, but not limited to, the following:

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1.	Evidence of open cohabitation or sexual intercourse between the known parent and the alleged parent at the probable time of conception;
2.	Medical or anthropological evidence relating to the alleged parentage of the child;
3.	The results of scientifically reliable genetic tests, including blood tests, weighted together with all of the other evidence;
4.	Evidence that the alleged parent consented to or acknowledged the common use of the alleged parent's surname by the child;
5.	Evidence that the alleged parent claimed the child as his or her child on any document filed by him or her with the government, including a tax return;
6.	An acknowledgment of paternity; and
7.	An admission by a male between the ages of 14 and 18 pursuant to section 20-49.6 of the Virginia Code. 95

A husband that has been found not to be the biological father of the child born to his wife during their marriage may not be held liable for support of the child. ⁹⁶ But a husband is often procedurally prevented from establishing his claim that he is not the biological father of the child born to his wife. ⁹⁷ If the husband's wife fraudulently misled the husband into believing he was the father of the child, the court may grant the husband relief from the procedural bar. ⁹⁸ Principles of estoppel may also prevent a husband from denying his responsibility to support the child of his wife by another man. ⁹⁹

An individual may file a petition for relief from any legal determination of paternity when genetic testing excludes the individual previously

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named as the father. The court may order any appropriate relief, including prospectively setting aside an obligation to pay child support. Relief from paternity will not be granted, however, if the individual named as the father either (i) acknowledged paternity knowing he was not the father; (ii) adopted the child; or (iii) knew that the child was conceived through artificial insemi-nation. ¹⁰⁰

6.803 Duration of Child Support Obligation. Child support may continue beyond a child's 18th birthday. The court's order must provide that support continue to be paid for any child over the age of 18 who is (i) a full-time high school student; (ii) not self-supporting; and (iii) living in the home of the party seeking or receiving child support until the child reaches the age of 19 or graduates from high school, whichever comes first. ¹⁰¹ The court may also order that support be paid or continue to be paid for any child over the age of 18 who (i) is severely and permanently mentally or physically disabled, and the disability existed before the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii) and (iii) above; (ii) is unable to live independently and support himself or herself; and (iii) resides in the home of the parent seeking or receiving child support. ¹⁰² 2017 amendments to sections 16.1-278.15 and 20-124.2(C) provide that, upon the request of either party, the court may order that those support payments be made to a special needs trust or an ABLE savings trust account as defined in section 23.1-700 for the benefit of the child.

The court also may confirm a stipulation or agreement of the parties that extends a support obligation beyond the time when it would terminate as provided by law. The court has no authority to decree support of children payable by the estate of a deceased party. ¹⁰³

6.804 Child Support Guidelines.

A. In General. In response to requirements of the federal Child Support Enforcement Amendments of 1984, ¹⁰⁴ Virginia established child support guidelines. The child support guidelines require counsel and the

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courts to apply sections 20-108.1 and 20-108.2 of the Virginia Code in combination. To promote goals of fairness and uniformity of outcomes, sections 20-108.2 contains the mathematical guidelines that produce a presumptively correct amount for a child support award. To allow courts to recognize the unique circumstances of some families, a variety of additional factors that may be considered by the court are set forth in sections 20-108.1.

The child support guidelines have been amended from time to time to reflect economic and societal changes. For example, the Virginia Child Support Guidelines Review Panel periodically reviews the guidelines for determining the appropriate dollar amount of monthly child support pay-ments. ¹⁰⁵ Similarly, the General Assembly has amended the law several times to create different methods of calculating child support obligations that reflect different custody arrangements, such as sole custody, split custody, shared custody, and sometimes a mixture of several of these arrangements in the same family. ¹⁰⁶

B. Application to All Child Support Orders. The child support guidelines are to be applied in any proceeding in which an issue of child support is to be determined under titles 16.1, 20, or 63.2 of the Virginia Code. This includes both administrative and judicial proceedings. All determinations of child support, including both initial proceedings and subsequent modification proceedings, must comply with the requirements set forth in sections 20-108.1 and 20-108.2. ¹⁰⁷ A support order entered by the court may be retroactive to the date when the initial pleading was filed. ¹⁰⁸

C. Presumptively Correct Amount. Section 20-108.2 contains mathematical guidelines that take into account the combined monthly gross incomes of the parties and the number of children for whom the parents share child support responsibilities. A "total monthly child support obligation" is determined by adding the "monthly basic child support obligation" from the mathematical tables together with two types of recognized expenses. These include health insurance expenses and work-related child care expenses. The amount of the award that results from the application of the section 20-108.2 guidelines is presumed to be the correct amount of child

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support to be awarded by the court. ¹⁰⁹ The presumptively correct amount of child support must be expressly determined in the order. ¹¹⁰

The statute presumes a minimum monthly child support obligation of $68 payable by the payor parent. ¹¹¹ Some parents in special circumstances may be exempt from paying even this minimum monthly payment. Exempt parents include those without sufficient assets to pay child support who are (i) institutionalized in a psychiatric facility; (ii) imprisoned for life with no chance of parole; (iii) totally and permanently disabled with no potential for paying child support, including those receiving Supplemental Security Income (SSI); or (iv) otherwise involuntarily unable to produce income. ¹¹² If the gross income of the obligor is equal to or less than 150 percent of the federal poverty level promulgated by the U.S. Department of Health and Human Services, then the court may set an obligation below the presumptive statutory minimum, unless doing so seriously impairs the custodial parent's ability to provide adequate housing and other basic necessities for the child. ¹¹³

D. Rebutting the Presumption. In order to rebut the presumptively correct amount of child support determined under section 20-108.2, the court must find that the award would be "unjust or inappropriate" in a particular case. ¹¹⁴ Any upward or downward adjustment of the presumptively correct amount of child support is determined by the ability of each party to provide child support, by the best interests of the child, and by consideration of a list...