Settling Custody, Visitation and Child Support in Virginia

As always, please review my disclaimer before reading this post by clicking on the link above or on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Additional disclaimer - I represented the appellant in the Virginia Court of Appeals in the case of Everett v. Carome discussed below.  That case is mentioned not as an example of my work, nor to provide any example of my abilities as an attorney, but rather solely to discuss the legal implications of the ruling issued in that case.  Nonetheless, you should be aware that my personal involvement in the case may influence the way I view the ruling, and my interpretation thereof.

Introduction

One of the general principles behind settlement agreements in court cases is the notion that individuals will always look out for their own best interests first.  As a result, if you decide settling a case a certain way is in your best interest, who is a judge to say otherwise?  But what happens when your settlement affects someone else - someone who didn't get any say in what you decided?  This is the questions judges are routinely faced with when dealing with custody, visitation and child support cases that have been settled between the child's parents.

In this blog post, I will be discussing the additional factors you must deal with when settling a child custody, visitation and/or support case, that you don't normally have to deal with in other settlements.

The "Best Interest" Standard and the Court as Final Arbiter

The most basic rule about settling custody, visitation and/or child support cases is that these settlements must be in the "best interest" not of either parent, but of the child.  Since it's entirely conceivable that both parents will have interests that differ from the interests of the child, it is the court's responsibility to determine what is in the child's best interest.  This means that no settlement is binding on the court, and a court can void any settlement or any portion of a settlement that it deems not in the child's best interests.

Settlements Are Still Allowed

Despite this rule, which dates back to the 1800's, the General Assembly has passed a number of laws making it clear that the court is to give great deference to any settlement reached by the parents regarding the issues of custody, visitation and/or child support.  The idea behind this is that, at the end of the day, the parents are usually going to have a better idea of what is best for their child than the court.  As a result, the present rule is that a settlement on the issues of child custody, visitation, and/or child support will be approved by the court unless the settlement is within one of the categories of settlements that are automatically forbidden, or it can actually be proven that a proposed settlement is not in the child's best interest.

Types of Forbidden Settlements

So, what kinds of settlements are strictly forbidden?  There's no statutory law that lays this out, so these rules are developed from case law, meaning they are still evolving.  Nonetheless, there are some types of settlements that are so well established as to be forbidden, that if a judge misses the issue originally and approves a settlement in this category and someone comes back years later and says "hey, this settlement shouldn't have been approved" the settlement can still be undone.  The key types of settlements that are strictly forbidden are:

• Right Terminations:  Virginia has a very specific set of rules for how a parent's parental rights and obligations can be terminated (I did a blog post on this here).  A settlement between the parents is not within those set ways rights can be terminated.  As such, a custody/visitation agreement that permanently terminates one parent's parental rights and obligations is automatically invalid.

• Waivers of Support:  No matter what you may have been offered in return, nothing, according to Virginia law, allows you to abrogate a child's right to be supported by both parents.  This means that you cannot waive your right to receive child support in a child support settlement.  This rule was established by the case of Kelley v. Kelley in the early 1990's when, in a divorce, a wife received the full value of the marital residence in exchange for her never being able to seek child support.  The wife later sought child support anyways, and the Virginia Supreme Court said her pursuit of child support could go forward despite the agreement since the agreement was invalid due to the child support waiver.  Note, however, that this bar is to permanent waivers of child support.  There's nothing wrong with setting the current child support amount at $0 per month, as long as it can still be changed later.

• Jurisdiction-Stripping:  Just as one fundamental rule is that a child has a right to support from both parents, another, as laid out above, is that the court must be able to serve as the arbiter of the child's best interests.  As a result, agreements that forbid a party from going back to court later to modify custody, visitation, and/or support are also invalid.  Now, an agreement can have provisions that provide for automatic modifications in certain situations, but an agreement cannot forbid a party from going to court to change custody, visitation and/or child support in a manner different from the manner laid out in the agreement (although the agreement can provide certain penalties for doing so, as long as the penalties are not unreasonable or outrageous).

• Modification Bars:  As an offshoot on the ban of "jurisdiction stripping" is the notion that, since the court is the ultimate arbiter of a child's best interests, the court must have the power to modify custody, visitation and/or child support as the child's interests change over time.  This means provisions of settlements that forbid future modifications are also invalid.  In the child support context, this was raised as a side comment in Kelley, when the Virginia Supreme Court noted that agreements that "waive child support" and those that bar the court from exercising its power to modify child support or both types of agreements that are invalid.  Since that wasn't actually at issue in Kelley, though, this rule was seen for some time as "dicta" (an appellate court statement that has no binding precedential effect since it was not necessary to the finding of the court).  Nonetheless, in the early 2000's, the Court of Appeals dealt with a case called Shoup v. Shoup where an alleged stripping of the court's power to modify child support did occur.  While the Court of Appeals ultimately concluded that the agreement at issue in that case didn't actually take away the modification power of the court, it finally made clear that if the agreement had, it would have been invalid.  This still left open for some time, however, the question of whether or not an agreement could bar child support order from ever being reduced, since arguably it's only an agreement that bars child support from ever being increased that would harm a child's best interests.  Many trial courts assumed that a child still has an interest as well in his or her non-custodial parent not being made destitute from a child support order they perhaps could no longer afford, and so child support must always be modifiable either way, but as recently as 2014 the Fairfax Circuit Court had a published opinion in a case called Host v. Host concluding that an agreement forbidding a downward child support modification was ok.  This question was finally settled in August of 2015 in a Court of Appeals case called Everett v. Carome which found as a key to its ultimate ruling that the modification rule found in Kelley and in Shoup forbade agreements from barring downward child support adjustments as well.  As a result, it is now clear law that no child support agreement can permanently forbid any kind of child support modification for minor children, whether that modification is upwards or downwards.

Other Challenges to Settlements

So, those are the only categories of settlements that are automatically invalid and unenforceable.  If, however, a settlement is reached which does not fall into any of the above categories and then one parent wants to challenge it, or if a guardian ad litem has been appointed for the child and the guardian ad litem wishes to challenge the settlement, the settlement can still be invalidated if it is sufficiently proven to the court that the settlement is not in the child's best interests.

Modifications of a Settlement

So, considering that one of the types of settlements that is automatically invalid is a settlement that bars modification of custody, visitation and/or child support in the future, you might be wondering how those things are modified later.  Well, the basic rule is that it is the same way as they would be modified without a settlement - the party moving to modify must show that there has been a "material change in circumstances" since the settlement was approved, and once they've done so, custody, visitation, and/or child support is fully re-opened to litigate or settle.  There is a caveat, however.  If your settlement took into account certain assumptions about what would happen in the future, and worked those assumptions into the settlement, then those predicted things happening cannot be a "material change in circumstances" even if they would be absent an agreement, since the assumption that those things would happen are already effectively a part of the current order.

Settling Custody, Visitation and/or Child Support is Worthwhile

So, reading all the above, you might be thinking "well, then why bother settling these things, if we have to go through all of this?"  The answer is simple.  First, like most settlements, you can do a lot of things in a settlement that the court can't do on its own.  You can agree to have child support continue past the child turning 18.  You can agree to have child support automatically change upon the incomes of the parents changing.  You can agree to have visitation automatically change based on certain pre-determined conditions.  In short, settlement gives you a lot more flexibility than you have in court.

Second, the vast majority of settlements aren't even contested.  Most settlements to custody, visitation and/or child support cases that are presented to a court are not challenged by anyone and are not heavily scrutinized by the court.  The courts are generally too busy to find an issue with a settlement on their own, and people don't usually renege on their settlements.  As a result, the vast majority of custody, visitation and/or child support settlements that don't fall into the category of an automatically forbidden settlement are approved without contest, without trouble, and generally as easily as any other kind of settlement.  Moreover, when those settlements are challenged, they are usually upheld.

In short, settlements in custody, visitation, and/or child support cases are usually flexible, and usually valid.  As a result, if you can reach a settlement in your custody, visitation and/or child support case, it's still a good idea, despite the extra steps that have to be taken.

Conclusion

In recognition of the fact that parents might not always look out for their children's best interests, the courts serve as the final arbiter of those interests, and have the power to invalidate settlement agreements regarding child custody, visitation and/or support if the court finds those settlements to not be in the child's best interests.  Nonetheless, the vast majority of such settlements are valid and approved under guidance from the General Assembly requiring the courts to give at least some deference to the parents' choices.  If you are involved in drafting a custody, visitation and/or child support settlement or a dispute regarding one, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to thirty minutes!