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BeckyH
BeckyH, Paralegal
Category: Family Law
Satisfied Customers: 37
Experience:  18 years' family law experience. [This post should not be construed as legal advice.]
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In the state of Virginia on a new petition for child ...

Customer Question

In the state of Virginia on a new petition for child support how far back will I be granted child support?
Submitted: 6 years ago.
Category: Family Law
Expert:  BeckyH replied 6 years ago.

Child support is retroactive to the time that you request the child support by filing your petition unless there is an order with the Department of Social Services prior to that. This information should help you:

In any proceeding on the issue of determining child support under this title or Title 16.1 or Title 63.2, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded. Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with any court provided the complainant exercised due diligence in the service of the respondent or, if earlier, the date an order of the Department of Social Services entered pursuant to Title 63.2 and directing payment of support was delivered to the sheriff or process server for service on the obligor.

Customer: replied 6 years ago.
So are you saying that they wouldnt go back to the date when the custody was changed? I had filed for child support back in January of this year, we went to court in March and it was continued to April and I messed up the court date and missed court so the case was dismissed and now I had to refile a petition for child support. So would they still use the original date of January or when the second petition was filed?
Expert:  BeckyH replied 6 years ago.

So, there were orders in place for you to pay support and then you got custody and requested child support? Is that correct? Then you missed the court date and they dismissed your petition? Let me know if that is correct. I will do a little research to see if there is anything that you can do. Without finding a loophole, it would be retroactive to the date you re-file.

Customer: replied 6 years ago.
Yes we have always had joint custody and he had physical up until january 2007 and i got temp physical and then final in january 2008. I used to pay him child support when he had physical. When we had court back in march 2008 the judge was ordering the child support to be paid back to january of 2008 but then the case was continued to april bc his lawyer was ill and that is the date i missed.
Expert:  BeckyH replied 6 years ago.

What I would suggest you do is file a Motion to Reinstate the Case on the Docket. You have a limited time frame, so hurry. It will basically state:

1. This case was dismissed by an order signed on ______.

2. The act or omission resulting in dismissal was not intentional or the result of conscious indifference but was due to an accident or mistake, in that ______.

If applicable: 3. Neither ______ nor [name] received mailed or actual notice of the Order of Dismissal within twenty days after the signing of the order, but, rather, notice of the Order of Dismissal was received on ______, ______ days after the signing of the order, in the following manner: ______.

4. Attached to this motion is the affidavit of ______ showing [he/she] received neither actual nor mailed notice of the signing of the Order of Dismissal within twenty days after the signing of the order.

Customer: replied 6 years ago.
What if I have already filed a new petition? Can i still do this that you are referring to?
Expert:  BeckyH replied 6 years ago.

Oooh, I don't think so. I don't think you can have two cases pending at the same time involving the same parties and child...plus they should both have the same cause number.

Has it been more than 20 days since the first case was dismissed? If not, you could consider non-suiting your new petition and filing the motion. Kinda risky since the reinstatement is not guaranteed, but in our county it is usually granted if it was just an error. I don't know what the filing fee is, so you will need to take that into consideration.

If it has been more than 20 days since your original case was dismissed, you will not want to non-suit your new petition. I don't think the child support can be retroactive beyond the date you filed and requested it. With that said, if you act on the new petition, you will still want to request the support retroactive to when the child began living with you. If there is any way the court can order it, they will. Plus, you may reach an agreement with your ex to go back to January even if the court can't order it.

Customer: replied 6 years ago.
There is no filing fee. The missed court date and dismissal of the case was just last Wednesday the 23rd of April. I have not received any court papers about the dismissal. The only thing I received was a show cause summons to come to court this month to explain why I did not show up for court on the 23rd of April. I am really not sure what to do from here. I really dont know how to do any of these things you speak of.
Expert:  BeckyH replied 6 years ago.
What makes you think your case was dismissed? If you received a show cause summons, it appears your case was merely reset.
Customer: replied 6 years ago.
Because I had thought my court date was the 24th of April and I was wrong and missed it on the 23rd and when I went to the clerks office on the 24th they told me that the case had been dismissed because I was not present at the hearing and then today I get served with a show cause summons (civil) for failure to appear on the 23rd to come in this month to explain why I missed court.
Expert:  BeckyH replied 6 years ago.
There may be a form in the clerk's office for requesting that the case be reinstated. Otherwise, you can copy and paste the information from my post. You will need to file that within twenty days -- actually as soon as possible and request a hearing on it. If the reinstatement is denied at the hearing, you will need to re-file the Petition. If the summons is within 20 days, you might be able to orally request it be reinstated.
Customer: replied 6 years ago.
I guess I am just really confused because when I went to the clerks office on the 24th and they told me that the case had been dismissed and I asked them what do I do know and they told me that I had to go start over and refile..And also since I am the petitioner and yes I did make and error in missing the court date and not intentionally of course why am I served with a show cause summons and what does it mean? Will my ex also have to be at court for the show cause summons hearing?
Expert:  BeckyH replied 6 years ago.

Well, first, the clerks probably do not know what you can legally do. Second, they can not give you any sort of advice. If they told you the case was dismissed, all they can tell you is that they need to refile. The summons is because you had a hearing set where your ex and his attorney appeared and you did not. You can explain to the Judge yourr mistake. The summons might have been at the request of opposing counsel, or it might just been the procedure in that county. In any event, you will need to explain your mistake to the Judge.

Good luck in your case.

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