Legal Question in Family Law in Virginia

Child Custody Case And Remarriage

I am recently married. My husband and his ex-wife are fighting for custody of their 10 year old daughter. They have joint custody. We are requesting home study, etc. She wants also an increase in child support thus the reason she wants full custody. We want it because we live in stable enviroment and can provide for the child. She has supeonaed the jewelry store for my husband's records in regards to my engagement and wedding ring. How is this relevent to child support?

Asked on 3/31/06, 10:32 am

4 Answers from Attorneys

James Wilson James H. Wilson, Jr., Attorney & Counsellor at Law
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Re: Child Custody Case And Remarriage

You should consult with a Virginia attorney concerning the applicability of the law to the facts of your particular case. I advise your husband and his ex-wife to use an Alternative Dispute Resolution process such as mediation, which may be faster, less adversarial and less costly than a contested custody case. The following is general legal information on pre-trial discovery and child support factors in Virginia.

Discovery is the process a party may use to obtain facts and information about a case from the other party or third parties. Discovery is allowed in the Circuit Court and permitted in the Juvenile and Domestic Relations Court by request, except that depositions are never permitted in the JDR Court.

Part 4 of the Rules of the Supreme Court of Virginia provides the standard for discovery:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence

General Provisions Governing Discovery., RULE 4:1 (2000)

The first step in calculating child support is a computation under the child support guidelines, which produces a presumptive amount of child support. The judge may deviate from the presumptive amount of child support with a written finding based any one or more of 18 different factors enumerated in Section 20-108.1 of the Code of Virginia, including such factors as (11) Earning capacity, obligations and needs, and the financial resources of each parent, or (18) Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children.

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Answered on 3/31/06, 11:26 am
Tiziana Ventimiglia Tiziana Ventimiglia, Attorney at Law
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Re: Child Custody Case And Remarriage

The first thing that comes to mind is the fact that he may be claiming that he is not earning enough money (or has availability of money) to bear an increase of child support... if your engagement ring was paid in full or cost a large sum of money... this may imply that he simply does not have his priorities straight or that he is lying. To give you an example: if the father claims that he is broke but then it can proven that just few weeks/months back he bought a $50,000 ring... one could imply that he is actually well off and that he could afford paying more money in child support. Whatever their reasoning might be, keep in mind that you can always ask, as part of the discovery process, that they justify their request. This will help you also in the strategy for your case. I am sure that they requested information and documents not only regarding his recent purchases, but also regarding his employment, savings, checking accounts, and so forth. This is pretty standard information that is requested when child support petitions are disputed. Now, once they justify their request and once you turn over the evidence... it may just prove that your claims/justifications etc. were correct and they may be denied their request for increase of child support.

Sincerely,

Tiziana Ventimiglia

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Answered on 3/31/06, 11:56 am
Fred Kaufman Fredrick S. Kaufman, Esquire
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Re: Child Custody Case And Remarriage

It has nothing to do with child support. You need to file a Motion to Quash that subpoena. The rules only allow discovery of RELEVANT evidence and how much he spent on a ring is only relevat if he doesn't pay his support and he is issued a Show Cause for contempt - then it would be relevant that he can afford a ring but not to pay his support.

Support is ONLY based on the gross income of mother father, the amount of work related child care and the amount of health care paid for the child. Any other assets are irrelevant.

As always you're insane if you don't hire a good lawyer.

Good luck.

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Answered on 3/31/06, 8:30 pm
James Short Roy, Larsen, Romm & Lascara
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Re: Child Custody Case And Remarriage

It is unclear on what the ex-wife's motive is in subpoenaing the jewelry store records. She could be alleging that your Husband is making more money than he is claiming and think that the fact that he spent a significant sum of money on an engagement ring and wedding ring would support her position. In the alternative, if this jewelry was very expensive, she could be stating that your Husband is frivolous with money and therefore exercises poor judgment which could affect his suitability for custody.

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Answered on 4/03/06, 1:54 pm

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