When you annoy a clock, it gets ticked off. Virginia parents know five minutes of listening to a seven-year-old tell jokes can feel like five hours. But time itself — minutes, hours, days — is at the center of child support calculations in the Commonwealth.

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Shared Custody & Child Support

Some divorced folks say child support is in the same category as the Easter Bunny, Tooth Fairy, and Santa: you always hear about it but never see it. In Virginia, though, child support does exist, and we will take half a second to spell out the basics based on custody arrangements:

  • Physical Custody — Responsibility for the care and control of the child
  • Legal Custody — Authority to make legal, medical, religious and educational decisions concerning the child
  • Joint Custody — This can mean joint legal custody, joint physical custody, or a combination of joint legal and physical custody under 20-124.1
  • Sole Custody — One person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.
  • Shared, Split, or Divided Custody — Undefined terms in the Code of Virginia

Since “shared custody” is casually mentioned in the Code without a legal definition, it is considered by family law practices to be a type of joint custody in which each parent enjoys the kids half the time, a 50-50 sharing of responsibilities.

Total child support obligations (for both parents) are spelled out meticulously in Virginia Code § 20-108.2 for every level of monthly income from $0 to $35,000 (that’s a whopping $420,000 a year).

Time for Number Crunching

Though many attorneys consider the term as old as a grandfather clock, “custodial parent” refers to the parent who is housing, feeding, clothing and caring for the child or children most of the time. “Noncustodial parent” refers to the other parent, the one for whom parenting time schedules are laid out and visitation is crucial.

As a general rule, the custodial parent receives child support payments from the noncustodial parent based on the noncustodial parent’s ability to pay.

Shared Custody

With shared custody arrangements, both parents are entitled to child support, with the higher earner compensating the lower earner for any difference. The law states that determination of these payments is based on the ratio in which parents share custody. The less time the child spends with the noncustodial parent, the less child support that parent has to pay.

For example, if both parents care for their children 182.5 days a year, total child support is divided evenly between them, 50-50, a 1:1 ratio. The higher earner pays something to the lower earner to make up for the income inequity.

In round numbers, suppose the custodial parent of one child earns $3,000 a month and the noncustodial parent earns $6,000 a month. That is $9,000 a month in income. That level of income means $984 in child support divided between the two parents, or $492 per parent.

One parent earns twice as much as the other parent, so that parent has a child support obligation twice the other parent’s, or $656.

The lower-earning parent is expected to contribute $328. The higher earner could be ordered by a Virginia court to pay the lower-earning parent the difference between half the support of $492 and the expected income-based contribution of $656, or $164 a month.

Joint Custody

Compare those numbers with parents having joint custody (parents with unequal custody). Suppose the higher-earning, noncustodial parent only has the kids 90 days per year. The lower-earning, custodial parent has them 275 days per year. This is a one-to-three ratio, or 1:3, meaning child support is now calculated at the ratio of 1:3.

Using the same incomes from our previous example, the two parents split total child support obligations 1:3. This reduces the noncustodial parent’s expected contribution to only $246 a month, far below the $492 half-share. In most cases this means the higher-earning, noncustodial parent with only 90 visitation days pays no child support to the lower-earning, custodial parent. The court assumes the noncustodial parent is already paying more than a “fair share” based on limited custodial time.

The 90 Day Custody Rule

How do celebrities stay cool in summer? They rely on their fans.

No, we are not going to stop with the kid jokes.

Virginians love their summers. Our latitude gives us roughly five more days of summer than winter. The breakdown (according to NPR) is 89-day winters, 90-day autumns, 93-day springs, and a luxurious 94 days of summer.

But in Virginia, 90 days is much more than the average length of a season. Real money rides on understanding the importance of the 90-day rule in divorce and child custody.

The Code of Virginia, § 20-108.2 tells us shared custody support hinges on each parent having more than 90 days of visitation or custody:

(a) Where a party has custody or visitation of a child or children for more than 90 days of the year, as such days are defined in subdivision G 3 (c), a shared custody child support amount based on the ratio in which the parents share the custody and visitation of any child or children shall be calculated in accordance with this subdivision. The presumptive support to be paid shall be the shared custody support amount…

When is a Day Not a Day?

Shoving a clock under your desk does not mean you are working overtime. Go ahead, share that with your kids. And then spend an hour explaining it.

Anyway, having your child for a visit does not automatically mean you spent the “day” together, at least not legally. In Virginia, a day is defined by law.

Specifically, counting days of custody to meet basic obligations for parenting time, child support, and child custody is written into Code of Virginia, § 20-108.2 (Fair warning: before clicking on the link to this breathless prose, set an alarm; you will fall asleep reading the actual law.)

To qualify for shared custody child support, you must have custody or visitation for at least 90 days out of a calendar year.

What is a day, exactly? Allow us — er, the Code, to take the time to educate you:

(c) Definition of a day. For the purposes of this section, “day” means a period of 24 hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than 24 hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period.

What time do ducks get up? At the quack of dawn. Hey, you were warned.

Anyway, we just love when our legislators attempt to clarify basic ideas by obfuscating them with even more words. That 75-word jumble breaks down into three important ideas:

  1. A day is presumed to be 24 hours
  2. The non-custodial parent is allowed to claim one-half day for any overnight visit that is less than 24 hours
  3. The custodial parent is allowed to claim the other half of the day for that same visit to the non-custodial parent

Parenting Time Schedules

What is a calendar’s favorite fruit? Dates. We’re not done yet!

The 90-day rule and the definition of an actual day both conspire to ruin many a divorced set of parents’ attempts at parenting time schedules. To qualify for child support, the non-custodial parent may think a “day” of visitation is earned with an overnight visit. The child is dropped off after school, let’s say, and the noncustodial parent drives the child to school the next morning. That time may well be 16 hours, but it will only count as a half day.

This matters because the more time the noncustodial parent spends with the children, the less child support is paid to the custodial parent. Given the sliding scale (from 90 days up to 182.5 days), every hour and every visitation day counts. And expect the custodial parent to keep as careful track of visitation as the noncustodial parent.

Apps exist to help with this, or you can track things manually, remembering:

  • Visitation under 12 hours that does not include an overnight stay will not count for the noncustodial parent
  • Visitation with an overnight stay but less than 24 hours is split between both parents as two half days
  • Multi-day visitations are calculated in increments of 12 hours (12, 24, 36, 48) and rounded down to the nearest multiple of 12 (that 45-hour weekend with the kids will only count as 36 hours, for example)

Reach Out to The Firm For Men

What kind of bugs live in clocks? Ticks. Okay, okay, only one more. We promise.

Most Virginia men do not make divorce a lifelong habit, so if you are confused by the minutiae of child custody, parenting time schedules, and child support, you need a good family law attorney.

The experienced lawyers at The Firm For Men are not only excellent attorneys, they are experts at keeping track of parenting time, negotiating visitation schedules, and explaining why this joke is riotously funny to a seven-year-old: How can you tell if a clock is hungry? It goes back four seconds.

Contact us today at The Firm For Men or call our office at (757) 383-9184.