The effects of a remarriage on child custody and support in Virginia is a topic that comes up frequently at our practice. Co-parenting after a divorce is often a tricky issue, at best. However, it becomes even more stressful after one of the parties remarries. There are thousands of questions that often run through one’s head. What if the new spouse is not a fit parental figure? Or on a brighter side, now that I am remarried, can my child finally have a two-parent house? And almost always people ask, will my child receive less child support, or can I reduce how much I pay?
Can the Remarriage Alter Custody/Visitation?
The answer is: it depends. Remarriage, by either party, does not automatically change custody or visitation. When determining custody, the court will consider what is in the best interest of the child. Typically, when there is a new marriage, there is already a court order in place regarding custody. If this is the case, the court must find that there has been a material change of circumstance, before it can modify the court order. Furthermore, any change must be in the best interest of the child.
The new marriage alone does not constitute a material change of circumstance. However, most marriages come with benefits and detriments, and those changes may be considered material changes. For example a new marriage may add stability to the household and provide the child with more quality time. Of course, not all changes are positive. The court may remove custody or restrict visitation if the new stepparent presents a physical danger or possible neglect to the child. This is by no means, a full list, and the factors are always case by case. It is always advisable to discuss remarriage with a Virginia Family lawyer.
Can the Remarriage Alter Child Support?
In almost all circumstances, either party’s remarriage will not affect child support. Child support is based upon the gross income of both biological/adopted parents. When a party is ordered to pay child support, the government is formally stating that this parent owes their child the money, the court is not ordering that said party owes a duty to the other parent. When a new spouse enters the picture and provides his/her spouse financial support, that aid does not remove one’s obligation to the child.
While Virginia Code Section 20-108.1 does allow a parent the opportunity to rebut the presumption of child support, a stepparent’s income typically does not raise up to the level that courts will allow a deviation from the guidelines. Even if the new spouse has a very high income, the court will not be moved by the argument that the stepparent could or is currently providing for the child fully. The court may consider factors such as living in a residence that is fully paid off when determining a deviation, though. However, the party that wants the reduction has the burden of proof, which will most likely, not be met.
That being said, the new marriage may affect the guidelines if there are new children born. Once a child is born, the guidelines will reflect that the corresponding parent has another child that requires support. It is important to note, if one is to remarry and now has stepchildren, they will not affect the support guidelines. This is caused by the fact that the stepparent is not required to provide them support due merely to the new marriage.
Nevertheless, there is always another option that would remove child support obligations after marriage, and that is an adoption. If the new stepparent adopts the stepchild, the biological parent will no longer owe child support.
This, however, comes with a very negative downside. If the new stepparent adopts the child, the biological parent will have no custodial or visitation rights. That party will effectively be legally removed from the child’s life.