§ 20-108.2. Guideline for determination of child support; quadrennial reviewby Child Support Guidelines Review Panel; executive summary.
A. There shall be a rebuttable presumption in any judicial or administrativeproceeding for child support under this title or Title 16.1 or 63.2,including cases involving split custody or shared custody, that the amount ofthe award which would result from the application of the guidelines set forthin this section is the correct amount of child support to be awarded. Inorder to rebut the presumption, the court shall make written findings in theorder as set out in § 20-108.1, which findings may be incorporated byreference, that the application of the guidelines would be unjust orinappropriate in a particular case as determined by relevant evidencepertaining to the factors set out in § 20-108.1. The Department of SocialServices shall set child support at the amount resulting from computationsusing the guidelines set out in this section pursuant to the authoritygranted to it in Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 and subjectto the provisions of § 63.2-1918.
B. For purposes of application of the guideline, a basic child supportobligation shall be computed using the schedule set out below. For combinedmonthly gross income amounts falling between amounts shown in the schedule,basic child support obligation amounts shall be extrapolated. However, unlessone of the following exemptions applies where the sole custody child supportobligation as computed pursuant to subdivision G 1 is less than $65 permonth, there shall be a presumptive minimum child support obligation of $65per month payable by the payor parent. Exemptions from this presumptiveminimum monthly child support obligation shall include: parents unable to paychild support because they lack sufficient assets from which to pay childsupport and who, in addition, are institutionalized in a psychiatricfacility; are imprisoned for life with no chance of parole; are medicallyverified to be totally and permanently disabled with no evidence of potentialfor paying child support, including recipients of Supplemental SecurityIncome (SSI); or are otherwise involuntarily unable to produce income."Number of children" means the number of children for whom the parentsshare joint legal responsibility and for whom support is being sought.
SCHEDULE OF MONTHLY BASIC CHILD SUPPORT OBLIGATIONS
For gross monthly income between $10,000 and $20,000, add the amount of childsupport for $10,000 to the following percentages of gross income above$10,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 3.1% 5.1% 6.8% 7.8% 8.8% 9.5%
For gross monthly income between $20,000 and $50,000, add the amount of childsupport for $20,000 to the following percentages of gross income above$20,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 2% 3.5% 5% 6% 6.9% 7.8%
For gross monthly income over $50,000, add the amount of child support for$50,000 to the following percentages of gross income above $50,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 1% 2% 3% 4% 5% 6%
C. For purposes of this section, "gross income" means all income from allsources, and shall include, but not be limited to, income from salaries,wages, commissions, royalties, bonuses, dividends, severance pay, pensions,interest, trust income, annuities, capital gains, social security benefitsexcept as listed below, workers' compensation benefits, unemploymentinsurance benefits, disability insurance benefits, veterans' benefits,spousal support, rental income, gifts, prizes or awards.
If a parent's gross income includes disability insurance benefits, it shallalso include any amounts paid to or for the child who is the subject of theorder and derived by the child from the parent's entitlement to disabilityinsurance benefits. To the extent that such derivative benefits are includedin a parent's gross income, that parent shall be entitled to a credit againsthis or her ongoing basic child support obligation for any such amounts, and,if the amount of the credit exceeds the parent's basic child supportobligations, the credit may be used to reduce arrearages.
Gross income shall be subject to deduction of reasonable business expensesfor persons with income from self-employment, a partnership, or a closelyheld business. "Gross income" shall not include:
1. Benefits from public assistance and social services programs as defined in§ 63.2-100;
2. Federal supplemental security income benefits;
3. Child support received; or
4. Income received by the payor from secondary employment income notpreviously included in "gross income," where the payor obtained the incometo discharge a child support arrearage established by a court oradministrative order and the payor is paying the arrearage pursuant to theorder. "Secondary employment income" includes but is not limited to incomefrom an additional job, from self-employment, or from overtime employment.The cessation of such secondary income upon the payment of the arrearageshall not be the basis for a material change in circumstances upon which amodification of child support may be based.
For purposes of this subsection: (i) spousal support received shall beincluded in gross income and spousal support paid shall be deducted fromgross income when paid pursuant to an order or written agreement and (ii)one-half of any self-employment tax paid shall be deducted from gross income.
Where there is an existing court or administrative order or written agreementrelating to the child or children of a party to the proceeding, who are notthe child or children who are the subject of the present proceeding, thenthere is a presumption that there shall be deducted from the gross income ofthe party subject to such order or written agreement, the amount that theparty is actually paying for the support of a child or children pursuant tosuch order or agreement.
Where a party to the proceeding has a natural or adopted child or children inthe party's household or primary physical custody, and the child or childrenare not the subject of the present proceeding, there is a presumption thatthere shall be deducted from the gross income of that party the amount asshown on the Schedule of Monthly Basic Child Support Obligations contained insubsection B that represents that party's support obligation based solely onthat party's income as being the total income available for the natural oradopted child or children in the party's household or primary physicalcustody, who are not the subject of the present proceeding. Provided,however, that the existence of a party's financial responsibility for such achild or children shall not of itself constitute a material change incircumstances for modifying a previous order of child support in anymodification proceeding. Any adjustment to gross income under this subsectionshall not create or reduce a support obligation to an amount which seriouslyimpairs the custodial parent's ability to maintain minimal adequate housingand provide other basic necessities for the child, as determined by the court.
In cases in which retroactive liability for support is being determined, thecourt or administrative agency may use the gross monthly income of theparties averaged over the period of retroactivity.
D. Except for good cause shown or the agreement of the parties, in additionto any other child support obligations established pursuant to this section,any child support order shall provide that the parents pay in proportion totheir gross incomes, as used for calculating the monthly support obligation,any reasonable and necessary unreimbursed medical or dental expenses that arein excess of $250 for any calendar year for each child who is the subject ofthe obligation. The method of payment of those expenses shall be contained inthe support order. Each parent shall pay his respective share of expenses asthose expenses are incurred. Any amount paid under this subsection shall notbe adjusted by, nor added to, the child support calculated in accordance withsubsection G. For the purposes of this section, medical or dental expensesshall include but not be limited to eyeglasses, prescription medication,prosthetics, orthodontics, and mental health or developmental disabilitiesservices, including but not limited to services provided by a social worker,psychologist, psychiatrist, counselor, or therapist.
E. Any costs for health care coverage as defined in § 63.2-1900 and dentalcare coverage, when actually being paid by a parent or that parent's spouse,to the extent such costs are directly allocable to the child or children, andwhich are the extra costs of covering the child or children beyond whatevercoverage the parent or that parent's spouse providing the coverage wouldotherwise have, shall be added to the basic child support obligation.
F. Any child-care costs incurred on behalf of the child or children due toemployment of the custodial parent shall be added to the basic child supportobligation. Child-care costs shall not exceed the amount required to providequality care from a licensed source. When requested by the noncustodialparent, the court may require the custodial parent to present documentationto verify the costs incurred for child care under this subsection. Whereappropriate, the court shall consider the willingness and availability of thenoncustodial parent to provide child care personally in determining whetherchild-care costs are necessary or excessive. Upon the request of eitherparty, and upon a showing of the tax savings a party derives from child-carecost deductions or credits, the court shall factor actual tax consequencesinto its calculation of the child-care costs to be added to the basic childsupport obligation.
G. 1. Sole custody support. The sole custody total monthly child supportobligation shall be established by adding (i) the monthly basic child supportobligation, as determined from the schedule contained in subsection B, (ii)costs for health care coverage to the extent allowable by subsection E, and(iii) work-related child-care costs and taking into consideration all thefactors set forth in subsection B of § 20-108.1. The total monthly childsupport obligation shall be divided between the parents in the sameproportion as their monthly gross incomes bear to their monthly combinedgross income. The monthly obligation of each parent shall be computed bymultiplying each parent's percentage of the parents' monthly combined grossincome by the total monthly child support obligation.
However, the monthly obligation of the noncustodial parent shall be reducedby the cost for health care coverage to the extent allowable by subsection Ewhen paid directly by the noncustodial parent or that parent's spouse.Unreimbursed medical and dental expenses shall be calculated and allocated inaccordance with subsection D.
2. Split custody support. In cases involving split custody, the amount ofchild support to be paid shall be the difference between the amounts owed byeach parent as a noncustodial parent, computed in accordance with subdivision1, with the noncustodial parent owing the larger amount paying the differenceto the other parent. Unreimbursed medical and dental expenses shall becalculated and allocated in accordance with subsection D.
For the purpose of this section and § 20-108.1, split custody shall belimited to those situations where each parent has physical custody of a childor children born of the parents, born of either parent and adopted by theother parent or adopted by both parents. For the purposes of calculating achild support obligation where split custody exists, a separate family unitexists for each parent, and child support for that family unit shall becalculated upon the number of children in that family unit who are born ofthe parents, born of either parent and adopted by the other parent or adoptedby both parents. Where split custody exists, a parent is a custodial parentto the children in that parent's family unit and is a noncustodial parent tothe children in the other parent's family unit.
3. Shared custody support.
(a) Where a party has custody or visitation of a child or children for morethan 90 days of the year, as such days are defined in subdivision G 3 (c), ashared custody child support amount based on the ratio in which the parentsshare the custody and visitation of any child or children shall be calculatedin accordance with this subdivision. The presumptive support to be paid shallbe the shared custody support amount, unless a party affirmatively shows thatthe sole custody support amount calculated as provided in subdivision G 1 isless than the shared custody support amount. If so, the lesser amount shallbe the support to be paid. For the purposes of this subsection, the followingshall apply:
(i) Income share. "Income share" means a parent's percentage of thecombined monthly gross income of both parents. The income share of a parentis that parent's gross income divided by the combined gross incomes of theparties.
(ii) Custody share. "Custody share" means the number of days that a parenthas physical custody, whether by sole custody, joint legal or jointresidential custody, or visitation, of a shared child per year divided by thenumber of days in the year. The actual or anticipated "custody share" ofthe parent who has or will have fewer days of physical custody shall becalculated for a one-year period. The "custody share" of the other parentshall be presumed to be the number of days in the year less the number ofdays calculated as the first parent's "custody share." For purposes of thiscalculation, the year may begin on such date as is determined in thediscretion of the court, and the day may begin at such time as is determinedin the discretion of the court. For purposes of this calculation, a day shallbe as defined in subdivision G 3 (c).
(iii) Shared support need. "Shared support need" means the presumptiveguideline amount of needed support for the shared child or childrencalculated pursuant to subsection B of this section, for the combined grossincome of the parties and the number of shared children, multiplied by 1.4.
(iv) Sole custody support. "Sole custody support" means the support amountdetermined in accordance with subdivision G 1.
(b) Support to be paid. The shared support need of the shared child orchildren shall be calculated pursuant to subdivision G 3 (a) (iii). Thisamount shall then be multiplied by the other parent's custody share. To thatsum for each parent shall be added the other parent's or that parent'sspouse's cost of health care coverage to the extent allowable by subsectionE, plus the other parent's work-related child-care costs to the extentallowable by subsection F. This total for each parent shall be multiplied bythat parent's income share. The support amounts thereby calculated that eachparent owes the other shall be subtracted one from the other and thedifference shall be the shared custody support one parent owes to the other,with the payor parent being the one whose shared support is the larger.Unreimbursed medical and dental expenses shall be calculated and allocated inaccordance with subsection D.
(c) Definition of a day. For the purposes of this section, "day" means aperiod of 24 hours; however, where the parent who has the fewer number ofovernight periods during the year has an overnight period with a child, buthas physical custody of the shared child for less than 24 hours during suchovernight period, there is a presumption that each parent shall be allocatedone-half of a day of custody for that period.
(d) Minimum standards. Any calculation under this subdivision shall notcreate or reduce a support obligation to an amount which seriously impairsthe custodial parent's ability to maintain minimal adequate housing andprovide other basic necessities for the child. If the gross income of eitherparty is equal to or less than 150 percent of the federal poverty levelpromulgated by the U.S. Department of Health and Human Services from time totime, then the shared custody support calculated pursuant to this subsectionshall not be the presumptively correct support and the court may considerwhether the sole custody support or the shared custody support is more justand appropriate.
(e) Support modification. When there has been an award of child support basedon the shared custody formula and one parent consistently fails to exercisecustody or visitation in accordance with the parent's custody share uponwhich the award was based, there shall be a rebuttable presumption that thesupport award should be modified.
(f) In the event that the shared custody support calculation indicates thatthe net support is to be paid to the parent who would not be the parentreceiving support pursuant to the sole custody calculation, then the sharedsupport shall be deemed to be the lesser support.
H. The Secretary of Health and Human Resources shall ensure that theguideline set out in this section is reviewed by October 31, 2001, and everyfour years thereafter, by the Child Support Guidelines Review Panel,consisting of 15 members comprised of four legislative members and 11nonlegislative citizen members. Members shall be appointed as follows: threemembers of the House Committee for Courts of Justice, upon the recommendationof the chairman of such committee, to be appointed by the Speaker of theHouse of Delegates in accordance with the principles of proportionalrepresentation contained in the Rules of the House of Delegates; one memberof the Senate Committee for Courts of Justice, upon the recommendation of thechairman of such committee, to be appointed by the Senate Committee on Rules;and one representative of a juvenile and domestic relations district court,one representative of a circuit court, one representative of the Departmentof Social Services' Division of Child Support Enforcement, three members ofthe Virginia State Bar, two custodial parents, two noncustodial parents, andone child advocate, upon the recommendation of the Secretary of Health andHuman Resources, to be appointed by the Governor. The Panel shall determinethe adequacy of the guideline for the determination of appropriate awards forthe support of children by considering current research and data on the costof and expenditures necessary for rearing children, and any other resourcesit deems relevant to such review. The Panel shall report its findings to theGeneral Assembly as provided in the procedures of the Division of LegislativeAutomated Systems for the processing of legislative documents and reportsbefore the General Assembly next convenes following such review.
Legislative members shall serve terms coincident with their terms of office.Nonlegislative citizen members shall serve at the pleasure of the Governor.All members may be reappointed. Appointments to fill vacancies, other than byexpiration of a term, shall be made for the unexpired terms. Vacancies shallbe filled in the same manner as the original appointments.
Legislative members shall receive such compensation as provided in §30-19.12, and nonlegislative citizen members shall receive such compensationfor the performance of their duties as provided in § 2.2-2813. All membersshall be reimbursed for all reasonable and necessary expenses incurred in theperformance of their duties as provided in §§ 2.2-2813 and 2.2-2825. Fundingfor the costs of compensation and expenses of the members shall be providedby the Department of Social Services.
The Department of Social Services shall provide staff support to the Panel.All agencies of the Commonwealth shall provide assistance to the Panel, uponrequest.
The chairman of the Panel shall submit to the Governor and the GeneralAssembly a quadrennial executive summary of the interim activity and work ofthe Panel no later than the first day of 2006 regular session of the GeneralAssembly and every four years thereafter. The executive summary shall besubmitted as provided in the procedures of the Division of LegislativeAutomated Systems for the processing of legislative documents and reports andshall be posted on the General Assembly's website.
(1988, c. 907; 1989, cc. 578, 579, 599; 1991, cc. 545, 588; 1992, cc. 79,716, 860; 1995, cc. 1, 481; 1996, cc. 491, 947, 1029; 1998, c. 618; 1999, cc.690, 808, 836; 2000, cc. 219, 305, 376, 384, 461; 2001, cc. 193, 809; 2002,cc. 650, 747; 2003, c. 885; 2004, cc. 907, 1008; 2005, c. 758; 2006, cc. 785,798; 2008, c. 697; 2009, c. 713; 2010, c. 243.)
§ 20-108.2. Guideline for determination of child support; quadrennial reviewby Child Support Guidelines Review Panel; executive summary.
A. There shall be a rebuttable presumption in any judicial or administrativeproceeding for child support under this title or Title 16.1 or 63.2,including cases involving split custody or shared custody, that the amount ofthe award which would result from the application of the guidelines set forthin this section is the correct amount of child support to be awarded. Inorder to rebut the presumption, the court shall make written findings in theorder as set out in § 20-108.1, which findings may be incorporated byreference, that the application of the guidelines would be unjust orinappropriate in a particular case as determined by relevant evidencepertaining to the factors set out in § 20-108.1. The Department of SocialServices shall set child support at the amount resulting from computationsusing the guidelines set out in this section pursuant to the authoritygranted to it in Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 and subjectto the provisions of § 63.2-1918.
B. For purposes of application of the guideline, a basic child supportobligation shall be computed using the schedule set out below. For combinedmonthly gross income amounts falling between amounts shown in the schedule,basic child support obligation amounts shall be extrapolated. However, unlessone of the following exemptions applies where the sole custody child supportobligation as computed pursuant to subdivision G 1 is less than $65 permonth, there shall be a presumptive minimum child support obligation of $65per month payable by the payor parent. Exemptions from this presumptiveminimum monthly child support obligation shall include: parents unable to paychild support because they lack sufficient assets from which to pay childsupport and who, in addition, are institutionalized in a psychiatricfacility; are imprisoned for life with no chance of parole; are medicallyverified to be totally and permanently disabled with no evidence of potentialfor paying child support, including recipients of Supplemental SecurityIncome (SSI); or are otherwise involuntarily unable to produce income."Number of children" means the number of children for whom the parentsshare joint legal responsibility and for whom support is being sought.
SCHEDULE OF MONTHLY BASIC CHILD SUPPORT OBLIGATIONS
For gross monthly income between $10,000 and $20,000, add the amount of childsupport for $10,000 to the following percentages of gross income above$10,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 3.1% 5.1% 6.8% 7.8% 8.8% 9.5%
For gross monthly income between $20,000 and $50,000, add the amount of childsupport for $20,000 to the following percentages of gross income above$20,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 2% 3.5% 5% 6% 6.9% 7.8%
For gross monthly income over $50,000, add the amount of child support for$50,000 to the following percentages of gross income above $50,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 1% 2% 3% 4% 5% 6%
C. For purposes of this section, "gross income" means all income from allsources, and shall include, but not be limited to, income from salaries,wages, commissions, royalties, bonuses, dividends, severance pay, pensions,interest, trust income, annuities, capital gains, social security benefitsexcept as listed below, workers' compensation benefits, unemploymentinsurance benefits, disability insurance benefits, veterans' benefits,spousal support, rental income, gifts, prizes or awards.
If a parent's gross income includes disability insurance benefits, it shallalso include any amounts paid to or for the child who is the subject of theorder and derived by the child from the parent's entitlement to disabilityinsurance benefits. To the extent that such derivative benefits are includedin a parent's gross income, that parent shall be entitled to a credit againsthis or her ongoing basic child support obligation for any such amounts, and,if the amount of the credit exceeds the parent's basic child supportobligations, the credit may be used to reduce arrearages.
Gross income shall be subject to deduction of reasonable business expensesfor persons with income from self-employment, a partnership, or a closelyheld business. "Gross income" shall not include:
1. Benefits from public assistance and social services programs as defined in§ 63.2-100;
2. Federal supplemental security income benefits;
3. Child support received; or
4. Income received by the payor from secondary employment income notpreviously included in "gross income," where the payor obtained the incometo discharge a child support arrearage established by a court oradministrative order and the payor is paying the arrearage pursuant to theorder. "Secondary employment income" includes but is not limited to incomefrom an additional job, from self-employment, or from overtime employment.The cessation of such secondary income upon the payment of the arrearageshall not be the basis for a material change in circumstances upon which amodification of child support may be based.
For purposes of this subsection: (i) spousal support received shall beincluded in gross income and spousal support paid shall be deducted fromgross income when paid pursuant to an order or written agreement and (ii)one-half of any self-employment tax paid shall be deducted from gross income.
Where there is an existing court or administrative order or written agreementrelating to the child or children of a party to the proceeding, who are notthe child or children who are the subject of the present proceeding, thenthere is a presumption that there shall be deducted from the gross income ofthe party subject to such order or written agreement, the amount that theparty is actually paying for the support of a child or children pursuant tosuch order or agreement.
Where a party to the proceeding has a natural or adopted child or children inthe party's household or primary physical custody, and the child or childrenare not the subject of the present proceeding, there is a presumption thatthere shall be deducted from the gross income of that party the amount asshown on the Schedule of Monthly Basic Child Support Obligations contained insubsection B that represents that party's support obligation based solely onthat party's income as being the total income available for the natural oradopted child or children in the party's household or primary physicalcustody, who are not the subject of the present proceeding. Provided,however, that the existence of a party's financial responsibility for such achild or children shall not of itself constitute a material change incircumstances for modifying a previous order of child support in anymodification proceeding. Any adjustment to gross income under this subsectionshall not create or reduce a support obligation to an amount which seriouslyimpairs the custodial parent's ability to maintain minimal adequate housingand provide other basic necessities for the child, as determined by the court.
In cases in which retroactive liability for support is being determined, thecourt or administrative agency may use the gross monthly income of theparties averaged over the period of retroactivity.
D. Except for good cause shown or the agreement of the parties, in additionto any other child support obligations established pursuant to this section,any child support order shall provide that the parents pay in proportion totheir gross incomes, as used for calculating the monthly support obligation,any reasonable and necessary unreimbursed medical or dental expenses that arein excess of $250 for any calendar year for each child who is the subject ofthe obligation. The method of payment of those expenses shall be contained inthe support order. Each parent shall pay his respective share of expenses asthose expenses are incurred. Any amount paid under this subsection shall notbe adjusted by, nor added to, the child support calculated in accordance withsubsection G. For the purposes of this section, medical or dental expensesshall include but not be limited to eyeglasses, prescription medication,prosthetics, orthodontics, and mental health or developmental disabilitiesservices, including but not limited to services provided by a social worker,psychologist, psychiatrist, counselor, or therapist.
E. Any costs for health care coverage as defined in § 63.2-1900 and dentalcare coverage, when actually being paid by a parent or that parent's spouse,to the extent such costs are directly allocable to the child or children, andwhich are the extra costs of covering the child or children beyond whatevercoverage the parent or that parent's spouse providing the coverage wouldotherwise have, shall be added to the basic child support obligation.
F. Any child-care costs incurred on behalf of the child or children due toemployment of the custodial parent shall be added to the basic child supportobligation. Child-care costs shall not exceed the amount required to providequality care from a licensed source. When requested by the noncustodialparent, the court may require the custodial parent to present documentationto verify the costs incurred for child care under this subsection. Whereappropriate, the court shall consider the willingness and availability of thenoncustodial parent to provide child care personally in determining whetherchild-care costs are necessary or excessive. Upon the request of eitherparty, and upon a showing of the tax savings a party derives from child-carecost deductions or credits, the court shall factor actual tax consequencesinto its calculation of the child-care costs to be added to the basic childsupport obligation.
G. 1. Sole custody support. The sole custody total monthly child supportobligation shall be established by adding (i) the monthly basic child supportobligation, as determined from the schedule contained in subsection B, (ii)costs for health care coverage to the extent allowable by subsection E, and(iii) work-related child-care costs and taking into consideration all thefactors set forth in subsection B of § 20-108.1. The total monthly childsupport obligation shall be divided between the parents in the sameproportion as their monthly gross incomes bear to their monthly combinedgross income. The monthly obligation of each parent shall be computed bymultiplying each parent's percentage of the parents' monthly combined grossincome by the total monthly child support obligation.
However, the monthly obligation of the noncustodial parent shall be reducedby the cost for health care coverage to the extent allowable by subsection Ewhen paid directly by the noncustodial parent or that parent's spouse.Unreimbursed medical and dental expenses shall be calculated and allocated inaccordance with subsection D.
2. Split custody support. In cases involving split custody, the amount ofchild support to be paid shall be the difference between the amounts owed byeach parent as a noncustodial parent, computed in accordance with subdivision1, with the noncustodial parent owing the larger amount paying the differenceto the other parent. Unreimbursed medical and dental expenses shall becalculated and allocated in accordance with subsection D.
For the purpose of this section and § 20-108.1, split custody shall belimited to those situations where each parent has physical custody of a childor children born of the parents, born of either parent and adopted by theother parent or adopted by both parents. For the purposes of calculating achild support obligation where split custody exists, a separate family unitexists for each parent, and child support for that family unit shall becalculated upon the number of children in that family unit who are born ofthe parents, born of either parent and adopted by the other parent or adoptedby both parents. Where split custody exists, a parent is a custodial parentto the children in that parent's family unit and is a noncustodial parent tothe children in the other parent's family unit.
3. Shared custody support.
(a) Where a party has custody or visitation of a child or children for morethan 90 days of the year, as such days are defined in subdivision G 3 (c), ashared custody child support amount based on the ratio in which the parentsshare the custody and visitation of any child or children shall be calculatedin accordance with this subdivision. The presumptive support to be paid shallbe the shared custody support amount, unless a party affirmatively shows thatthe sole custody support amount calculated as provided in subdivision G 1 isless than the shared custody support amount. If so, the lesser amount shallbe the support to be paid. For the purposes of this subsection, the followingshall apply:
(i) Income share. "Income share" means a parent's percentage of thecombined monthly gross income of both parents. The income share of a parentis that parent's gross income divided by the combined gross incomes of theparties.
(ii) Custody share. "Custody share" means the number of days that a parenthas physical custody, whether by sole custody, joint legal or jointresidential custody, or visitation, of a shared child per year divided by thenumber of days in the year. The actual or anticipated "custody share" ofthe parent who has or will have fewer days of physical custody shall becalculated for a one-year period. The "custody share" of the other parentshall be presumed to be the number of days in the year less the number ofdays calculated as the first parent's "custody share." For purposes of thiscalculation, the year may begin on such date as is determined in thediscretion of the court, and the day may begin at such time as is determinedin the discretion of the court. For purposes of this calculation, a day shallbe as defined in subdivision G 3 (c).
(iii) Shared support need. "Shared support need" means the presumptiveguideline amount of needed support for the shared child or childrencalculated pursuant to subsection B of this section, for the combined grossincome of the parties and the number of shared children, multiplied by 1.4.
(iv) Sole custody support. "Sole custody support" means the support amountdetermined in accordance with subdivision G 1.
(b) Support to be paid. The shared support need of the shared child orchildren shall be calculated pursuant to subdivision G 3 (a) (iii). Thisamount shall then be multiplied by the other parent's custody share. To thatsum for each parent shall be added the other parent's or that parent'sspouse's cost of health care coverage to the extent allowable by subsectionE, plus the other parent's work-related child-care costs to the extentallowable by subsection F. This total for each parent shall be multiplied bythat parent's income share. The support amounts thereby calculated that eachparent owes the other shall be subtracted one from the other and thedifference shall be the shared custody support one parent owes to the other,with the payor parent being the one whose shared support is the larger.Unreimbursed medical and dental expenses shall be calculated and allocated inaccordance with subsection D.
(c) Definition of a day. For the purposes of this section, "day" means aperiod of 24 hours; however, where the parent who has the fewer number ofovernight periods during the year has an overnight period with a child, buthas physical custody of the shared child for less than 24 hours during suchovernight period, there is a presumption that each parent shall be allocatedone-half of a day of custody for that period.
(d) Minimum standards. Any calculation under this subdivision shall notcreate or reduce a support obligation to an amount which seriously impairsthe custodial parent's ability to maintain minimal adequate housing andprovide other basic necessities for the child. If the gross income of eitherparty is equal to or less than 150 percent of the federal poverty levelpromulgated by the U.S. Department of Health and Human Services from time totime, then the shared custody support calculated pursuant to this subsectionshall not be the presumptively correct support and the court may considerwhether the sole custody support or the shared custody support is more justand appropriate.
(e) Support modification. When there has been an award of child support basedon the shared custody formula and one parent consistently fails to exercisecustody or visitation in accordance with the parent's custody share uponwhich the award was based, there shall be a rebuttable presumption that thesupport award should be modified.
(f) In the event that the shared custody support calculation indicates thatthe net support is to be paid to the parent who would not be the parentreceiving support pursuant to the sole custody calculation, then the sharedsupport shall be deemed to be the lesser support.
H. The Secretary of Health and Human Resources shall ensure that theguideline set out in this section is reviewed by October 31, 2001, and everyfour years thereafter, by the Child Support Guidelines Review Panel,consisting of 15 members comprised of four legislative members and 11nonlegislative citizen members. Members shall be appointed as follows: threemembers of the House Committee for Courts of Justice, upon the recommendationof the chairman of such committee, to be appointed by the Speaker of theHouse of Delegates in accordance with the principles of proportionalrepresentation contained in the Rules of the House of Delegates; one memberof the Senate Committee for Courts of Justice, upon the recommendation of thechairman of such committee, to be appointed by the Senate Committee on Rules;and one representative of a juvenile and domestic relations district court,one representative of a circuit court, one representative of the Departmentof Social Services' Division of Child Support Enforcement, three members ofthe Virginia State Bar, two custodial parents, two noncustodial parents, andone child advocate, upon the recommendation of the Secretary of Health andHuman Resources, to be appointed by the Governor. The Panel shall determinethe adequacy of the guideline for the determination of appropriate awards forthe support of children by considering current research and data on the costof and expenditures necessary for rearing children, and any other resourcesit deems relevant to such review. The Panel shall report its findings to theGeneral Assembly as provided in the procedures of the Division of LegislativeAutomated Systems for the processing of legislative documents and reportsbefore the General Assembly next convenes following such review.
Legislative members shall serve terms coincident with their terms of office.Nonlegislative citizen members shall serve at the pleasure of the Governor.All members may be reappointed. Appointments to fill vacancies, other than byexpiration of a term, shall be made for the unexpired terms. Vacancies shallbe filled in the same manner as the original appointments.
Legislative members shall receive such compensation as provided in §30-19.12, and nonlegislative citizen members shall receive such compensationfor the performance of their duties as provided in § 2.2-2813. All membersshall be reimbursed for all reasonable and necessary expenses incurred in theperformance of their duties as provided in §§ 2.2-2813 and 2.2-2825. Fundingfor the costs of compensation and expenses of the members shall be providedby the Department of Social Services.
The Department of Social Services shall provide staff support to the Panel.All agencies of the Commonwealth shall provide assistance to the Panel, uponrequest.
The chairman of the Panel shall submit to the Governor and the GeneralAssembly a quadrennial executive summary of the interim activity and work ofthe Panel no later than the first day of 2006 regular session of the GeneralAssembly and every four years thereafter. The executive summary shall besubmitted as provided in the procedures of the Division of LegislativeAutomated Systems for the processing of legislative documents and reports andshall be posted on the General Assembly's website.
(1988, c. 907; 1989, cc. 578, 579, 599; 1991, cc. 545, 588; 1992, cc. 79,716, 860; 1995, cc. 1, 481; 1996, cc. 491, 947, 1029; 1998, c. 618; 1999, cc.690, 808, 836; 2000, cc. 219, 305, 376, 384, 461; 2001, cc. 193, 809; 2002,cc. 650, 747; 2003, c. 885; 2004, cc. 907, 1008; 2005, c. 758; 2006, cc. 785,798; 2008, c. 697; 2009, c. 713; 2010, c. 243.)
§ 20-108.2. Guideline for determination of child support; quadrennial reviewby Child Support Guidelines Review Panel; executive summary.
A. There shall be a rebuttable presumption in any judicial or administrativeproceeding for child support under this title or Title 16.1 or 63.2,including cases involving split custody or shared custody, that the amount ofthe award which would result from the application of the guidelines set forthin this section is the correct amount of child support to be awarded. Inorder to rebut the presumption, the court shall make written findings in theorder as set out in § 20-108.1, which findings may be incorporated byreference, that the application of the guidelines would be unjust orinappropriate in a particular case as determined by relevant evidencepertaining to the factors set out in § 20-108.1. The Department of SocialServices shall set child support at the amount resulting from computationsusing the guidelines set out in this section pursuant to the authoritygranted to it in Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 and subjectto the provisions of § 63.2-1918.
B. For purposes of application of the guideline, a basic child supportobligation shall be computed using the schedule set out below. For combinedmonthly gross income amounts falling between amounts shown in the schedule,basic child support obligation amounts shall be extrapolated. However, unlessone of the following exemptions applies where the sole custody child supportobligation as computed pursuant to subdivision G 1 is less than $65 permonth, there shall be a presumptive minimum child support obligation of $65per month payable by the payor parent. Exemptions from this presumptiveminimum monthly child support obligation shall include: parents unable to paychild support because they lack sufficient assets from which to pay childsupport and who, in addition, are institutionalized in a psychiatricfacility; are imprisoned for life with no chance of parole; are medicallyverified to be totally and permanently disabled with no evidence of potentialfor paying child support, including recipients of Supplemental SecurityIncome (SSI); or are otherwise involuntarily unable to produce income."Number of children" means the number of children for whom the parentsshare joint legal responsibility and for whom support is being sought.
SCHEDULE OF MONTHLY BASIC CHILD SUPPORT OBLIGATIONS
For gross monthly income between $10,000 and $20,000, add the amount of childsupport for $10,000 to the following percentages of gross income above$10,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 3.1% 5.1% 6.8% 7.8% 8.8% 9.5%
For gross monthly income between $20,000 and $50,000, add the amount of childsupport for $20,000 to the following percentages of gross income above$20,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 2% 3.5% 5% 6% 6.9% 7.8%
For gross monthly income over $50,000, add the amount of child support for$50,000 to the following percentages of gross income above $50,000:
ONE TWO THREE FOUR FIVE SIX CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 1% 2% 3% 4% 5% 6%
C. For purposes of this section, "gross income" means all income from allsources, and shall include, but not be limited to, income from salaries,wages, commissions, royalties, bonuses, dividends, severance pay, pensions,interest, trust income, annuities, capital gains, social security benefitsexcept as listed below, workers' compensation benefits, unemploymentinsurance benefits, disability insurance benefits, veterans' benefits,spousal support, rental income, gifts, prizes or awards.
If a parent's gross income includes disability insurance benefits, it shallalso include any amounts paid to or for the child who is the subject of theorder and derived by the child from the parent's entitlement to disabilityinsurance benefits. To the extent that such derivative benefits are includedin a parent's gross income, that parent shall be entitled to a credit againsthis or her ongoing basic child support obligation for any such amounts, and,if the amount of the credit exceeds the parent's basic child supportobligations, the credit may be used to reduce arrearages.
Gross income shall be subject to deduction of reasonable business expensesfor persons with income from self-employment, a partnership, or a closelyheld business. "Gross income" shall not include:
1. Benefits from public assistance and social services programs as defined in§ 63.2-100;
2. Federal supplemental security income benefits;
3. Child support received; or
4. Income received by the payor from secondary employment income notpreviously included in "gross income," where the payor obtained the incometo discharge a child support arrearage established by a court oradministrative order and the payor is paying the arrearage pursuant to theorder. "Secondary employment income" includes but is not limited to incomefrom an additional job, from self-employment, or from overtime employment.The cessation of such secondary income upon the payment of the arrearageshall not be the basis for a material change in circumstances upon which amodification of child support may be based.
For purposes of this subsection: (i) spousal support received shall beincluded in gross income and spousal support paid shall be deducted fromgross income when paid pursuant to an order or written agreement and (ii)one-half of any self-employment tax paid shall be deducted from gross income.
Where there is an existing court or administrative order or written agreementrelating to the child or children of a party to the proceeding, who are notthe child or children who are the subject of the present proceeding, thenthere is a presumption that there shall be deducted from the gross income ofthe party subject to such order or written agreement, the amount that theparty is actually paying for the support of a child or children pursuant tosuch order or agreement.
Where a party to the proceeding has a natural or adopted child or children inthe party's household or primary physical custody, and the child or childrenare not the subject of the present proceeding, there is a presumption thatthere shall be deducted from the gross income of that party the amount asshown on the Schedule of Monthly Basic Child Support Obligations contained insubsection B that represents that party's support obligation based solely onthat party's income as being the total income available for the natural oradopted child or children in the party's household or primary physicalcustody, who are not the subject of the present proceeding. Provided,however, that the existence of a party's financial responsibility for such achild or children shall not of itself constitute a material change incircumstances for modifying a previous order of child support in anymodification proceeding. Any adjustment to gross income under this subsectionshall not create or reduce a support obligation to an amount which seriouslyimpairs the custodial parent's ability to maintain minimal adequate housingand provide other basic necessities for the child, as determined by the court.
In cases in which retroactive liability for support is being determined, thecourt or administrative agency may use the gross monthly income of theparties averaged over the period of retroactivity.
D. Except for good cause shown or the agreement of the parties, in additionto any other child support obligations established pursuant to this section,any child support order shall provide that the parents pay in proportion totheir gross incomes, as used for calculating the monthly support obligation,any reasonable and necessary unreimbursed medical or dental expenses that arein excess of $250 for any calendar year for each child who is the subject ofthe obligation. The method of payment of those expenses shall be contained inthe support order. Each parent shall pay his respective share of expenses asthose expenses are incurred. Any amount paid under this subsection shall notbe adjusted by, nor added to, the child support calculated in accordance withsubsection G. For the purposes of this section, medical or dental expensesshall include but not be limited to eyeglasses, prescription medication,prosthetics, orthodontics, and mental health or developmental disabilitiesservices, including but not limited to services provided by a social worker,psychologist, psychiatrist, counselor, or therapist.
E. Any costs for health care coverage as defined in § 63.2-1900 and dentalcare coverage, when actually being paid by a parent or that parent's spouse,to the extent such costs are directly allocable to the child or children, andwhich are the extra costs of covering the child or children beyond whatevercoverage the parent or that parent's spouse providing the coverage wouldotherwise have, shall be added to the basic child support obligation.
F. Any child-care costs incurred on behalf of the child or children due toemployment of the custodial parent shall be added to the basic child supportobligation. Child-care costs shall not exceed the amount required to providequality care from a licensed source. When requested by the noncustodialparent, the court may require the custodial parent to present documentationto verify the costs incurred for child care under this subsection. Whereappropriate, the court shall consider the willingness and availability of thenoncustodial parent to provide child care personally in determining whetherchild-care costs are necessary or excessive. Upon the request of eitherparty, and upon a showing of the tax savings a party derives from child-carecost deductions or credits, the court shall factor actual tax consequencesinto its calculation of the child-care costs to be added to the basic childsupport obligation.
G. 1. Sole custody support. The sole custody total monthly child supportobligation shall be established by adding (i) the monthly basic child supportobligation, as determined from the schedule contained in subsection B, (ii)costs for health care coverage to the extent allowable by subsection E, and(iii) work-related child-care costs and taking into consideration all thefactors set forth in subsection B of § 20-108.1. The total monthly childsupport obligation shall be divided between the parents in the sameproportion as their monthly gross incomes bear to their monthly combinedgross income. The monthly obligation of each parent shall be computed bymultiplying each parent's percentage of the parents' monthly combined grossincome by the total monthly child support obligation.
However, the monthly obligation of the noncustodial parent shall be reducedby the cost for health care coverage to the extent allowable by subsection Ewhen paid directly by the noncustodial parent or that parent's spouse.Unreimbursed medical and dental expenses shall be calculated and allocated inaccordance with subsection D.
2. Split custody support. In cases involving split custody, the amount ofchild support to be paid shall be the difference between the amounts owed byeach parent as a noncustodial parent, computed in accordance with subdivision1, with the noncustodial parent owing the larger amount paying the differenceto the other parent. Unreimbursed medical and dental expenses shall becalculated and allocated in accordance with subsection D.
For the purpose of this section and § 20-108.1, split custody shall belimited to those situations where each parent has physical custody of a childor children born of the parents, born of either parent and adopted by theother parent or adopted by both parents. For the purposes of calculating achild support obligation where split custody exists, a separate family unitexists for each parent, and child support for that family unit shall becalculated upon the number of children in that family unit who are born ofthe parents, born of either parent and adopted by the other parent or adoptedby both parents. Where split custody exists, a parent is a custodial parentto the children in that parent's family unit and is a noncustodial parent tothe children in the other parent's family unit.
3. Shared custody support.
(a) Where a party has custody or visitation of a child or children for morethan 90 days of the year, as such days are defined in subdivision G 3 (c), ashared custody child support amount based on the ratio in which the parentsshare the custody and visitation of any child or children shall be calculatedin accordance with this subdivision. The presumptive support to be paid shallbe the shared custody support amount, unless a party affirmatively shows thatthe sole custody support amount calculated as provided in subdivision G 1 isless than the shared custody support amount. If so, the lesser amount shallbe the support to be paid. For the purposes of this subsection, the followingshall apply:
(i) Income share. "Income share" means a parent's percentage of thecombined monthly gross income of both parents. The income share of a parentis that parent's gross income divided by the combined gross incomes of theparties.
(ii) Custody share. "Custody share" means the number of days that a parenthas physical custody, whether by sole custody, joint legal or jointresidential custody, or visitation, of a shared child per year divided by thenumber of days in the year. The actual or anticipated "custody share" ofthe parent who has or will have fewer days of physical custody shall becalculated for a one-year period. The "custody share" of the other parentshall be presumed to be the number of days in the year less the number ofdays calculated as the first parent's "custody share." For purposes of thiscalculation, the year may begin on such date as is determined in thediscretion of the court, and the day may begin at such time as is determinedin the discretion of the court. For purposes of this calculation, a day shallbe as defined in subdivision G 3 (c).
(iii) Shared support need. "Shared support need" means the presumptiveguideline amount of needed support for the shared child or childrencalculated pursuant to subsection B of this section, for the combined grossincome of the parties and the number of shared children, multiplied by 1.4.
(iv) Sole custody support. "Sole custody support" means the support amountdetermined in accordance with subdivision G 1.
(b) Support to be paid. The shared support need of the shared child orchildren shall be calculated pursuant to subdivision G 3 (a) (iii). Thisamount shall then be multiplied by the other parent's custody share. To thatsum for each parent shall be added the other parent's or that parent'sspouse's cost of health care coverage to the extent allowable by subsectionE, plus the other parent's work-related child-care costs to the extentallowable by subsection F. This total for each parent shall be multiplied bythat parent's income share. The support amounts thereby calculated that eachparent owes the other shall be subtracted one from the other and thedifference shall be the shared custody support one parent owes to the other,with the payor parent being the one whose shared support is the larger.Unreimbursed medical and dental expenses shall be calculated and allocated inaccordance with subsection D.
(c) Definition of a day. For the purposes of this section, "day" means aperiod of 24 hours; however, where the parent who has the fewer number ofovernight periods during the year has an overnight period with a child, buthas physical custody of the shared child for less than 24 hours during suchovernight period, there is a presumption that each parent shall be allocatedone-half of a day of custody for that period.
(d) Minimum standards. Any calculation under this subdivision shall notcreate or reduce a support obligation to an amount which seriously impairsthe custodial parent's ability to maintain minimal adequate housing andprovide other basic necessities for the child. If the gross income of eitherparty is equal to or less than 150 percent of the federal poverty levelpromulgated by the U.S. Department of Health and Human Services from time totime, then the shared custody support calculated pursuant to this subsectionshall not be the presumptively correct support and the court may considerwhether the sole custody support or the shared custody support is more justand appropriate.
(e) Support modification. When there has been an award of child support basedon the shared custody formula and one parent consistently fails to exercisecustody or visitation in accordance with the parent's custody share uponwhich the award was based, there shall be a rebuttable presumption that thesupport award should be modified.
(f) In the event that the shared custody support calculation indicates thatthe net support is to be paid to the parent who would not be the parentreceiving support pursuant to the sole custody calculation, then the sharedsupport shall be deemed to be the lesser support.
H. The Secretary of Health and Human Resources shall ensure that theguideline set out in this section is reviewed by October 31, 2001, and everyfour years thereafter, by the Child Support Guidelines Review Panel,consisting of 15 members comprised of four legislative members and 11nonlegislative citizen members. Members shall be appointed as follows: threemembers of the House Committee for Courts of Justice, upon the recommendationof the chairman of such committee, to be appointed by the Speaker of theHouse of Delegates in accordance with the principles of proportionalrepresentation contained in the Rules of the House of Delegates; one memberof the Senate Committee for Courts of Justice, upon the recommendation of thechairman of such committee, to be appointed by the Senate Committee on Rules;and one representative of a juvenile and domestic relations district court,one representative of a circuit court, one representative of the Departmentof Social Services' Division of Child Support Enforcement, three members ofthe Virginia State Bar, two custodial parents, two noncustodial parents, andone child advocate, upon the recommendation of the Secretary of Health andHuman Resources, to be appointed by the Governor. The Panel shall determinethe adequacy of the guideline for the determination of appropriate awards forthe support of children by considering current research and data on the costof and expenditures necessary for rearing children, and any other resourcesit deems relevant to such review. The Panel shall report its findings to theGeneral Assembly as provided in the procedures of the Division of LegislativeAutomated Systems for the processing of legislative documents and reportsbefore the General Assembly next convenes following such review.
Legislative members shall serve terms coincident with their terms of office.Nonlegislative citizen members shall serve at the pleasure of the Governor.All members may be reappointed. Appointments to fill vacancies, other than byexpiration of a term, shall be made for the unexpired terms. Vacancies shallbe filled in the same manner as the original appointments.
Legislative members shall receive such compensation as provided in §30-19.12, and nonlegislative citizen members shall receive such compensationfor the performance of their duties as provided in § 2.2-2813. All membersshall be reimbursed for all reasonable and necessary expenses incurred in theperformance of their duties as provided in §§ 2.2-2813 and 2.2-2825. Fundingfor the costs of compensation and expenses of the members shall be providedby the Department of Social Services.
The Department of Social Services shall provide staff support to the Panel.All agencies of the Commonwealth shall provide assistance to the Panel, uponrequest.
The chairman of the Panel shall submit to the Governor and the GeneralAssembly a quadrennial executive summary of the interim activity and work ofthe Panel no later than the first day of 2006 regular session of the GeneralAssembly and every four years thereafter. The executive summary shall besubmitted as provided in the procedures of the Division of LegislativeAutomated Systems for the processing of legislative documents and reports andshall be posted on the General Assembly's website.
(1988, c. 907; 1989, cc. 578, 579, 599; 1991, cc. 545, 588; 1992, cc. 79,716, 860; 1995, cc. 1, 481; 1996, cc. 491, 947, 1029; 1998, c. 618; 1999, cc.690, 808, 836; 2000, cc. 219, 305, 376, 384, 461; 2001, cc. 193, 809; 2002,cc. 650, 747; 2003, c. 885; 2004, cc. 907, 1008; 2005, c. 758; 2006, cc. 785,798; 2008, c. 697; 2009, c. 713; 2010, c. 243.)
