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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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What president allows a judge to grant arrearages and child

Customer Question

What president allows a judge to grant arrearages and child support to the petitioner when the respondant requested the support? Income was imputed on the respondant...now his lawyer says case should have been voided...petitioner did not request support because it was an agreement order of 50/50 child care...judge granted a rehear her 1st time in two years.
Submitted: 4 years ago.
Category: Family Law
Expert:  Ely replied 4 years ago.
Hello,



My name is XXXXX XXXXX I am one of JustAnswer's attorneys. I'll be helping you resolve your matter today.



I think you mean precedent. :)Retroactive child support is imposed if the other parent knew of the child, knew if was theirs, and refused to help or to go to court to determine custody, and/or if they actively avoided suit (i.e. being served). It's subjective, and often up to the Judge.

Best of luck in your matter. I'm here if you need any more clarification or follow up info.



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Customer: replied 4 years ago.
Your answer does not fit the question asked. Respondant is active in childs life. What president allows a judge to grant support and retroactive support to the PETITIONER?
Expert:  Ely replied 4 years ago.
Well, is the petitioner the custodial parent and the respondent the paying non-custodial? I need some background pls.
Customer: replied 4 years ago.
Mother is petitioner. I took out a case april of 2008. Father and mother agree to 50/50 child care cost split. Both parents have legal custody. Mother granted physical cusody in 2008. Parenting agreement established then father have majority of nights because mom worked nights. Dad also had two days (his days off work at time) with child. He agreed then when working to 50/50 split.
1/30/09 dad abandons job. Take mother to court for child support may of 2009 for physical custody and support. Mother agrees to joint physical,joint legal custody. With objections to support.because father is willfully unemployed only accepting retirement income of 1,560 a month.and no reason for not working at age 42. Decision rendered on 11/30/09 father pay support on imputed income from retro from may filing.
Expert:  Ely replied 4 years ago.
The Judge will not grant retro b/c the father arguably had the child for over 50% of the time beforehand.
Customer: replied 4 years ago.
Is this your best answer...the judge already granted retro and support.father appealed saying case should be voided, that mom did not ask for support. Remember, mom would have had to pay support and retro from time filed. Even though mom had an exsisting order. So what case law or PRECEDENT will allow the order to stand..
Expert:  Ely replied 4 years ago.
I see. I am not a Virgina attorney, but a Texas attorney. Therefore, I will allow a XXXXX XXXXXcensed attorney comment on caselaw in regards XXXXX XXXXX I am going to opt out of your answer and let another expert opt in to help you. No need to respond to this message. Additionally, you do not have to stay online – your question will remain active and an email will be sent to you as soon an expert answers it. My apologies for the inconvenience. You have not been charged. Good luck.
Customer: replied 4 years ago.
I.do have a lawyer. Research is needed based on the question alone that has not been answered. 8 answered. I'm asking for a resource not advice.the actions have already been taken
Expert:  AlexiaEsq. replied 4 years ago.

Dear Jag,

 

Just to get these facts clear: The Father requests (via motion) child support be paid him after he quits his job. Mother opposes, on the grounds that he is voluntarily unemployer/underemployed. Judge denies father' s motion for child support and makes what appears to be a "sua sponte" order of child support from father to mother, despite the fact that the mother did not expressly make a Cross Motion for same. Is this correct?

 

And you are wondering about precedential case law but this is much further than caselaw because Virginia has actually set into statutue, expressly, the Court's right to make "its own motion...revise and alter such decree concerning the ...maintenance of the children....make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require." Both statute AND caselaw allow the Judge to do this, expressly:

 

? 20-108. Revision and alteration of such decrees.

The court may, from time to time after decreeing as provided in ? 20-107.2, on petition of either of the parents, or on its own motion or upon petition of any probation officer or the Department of Social Services, which petition shall set forth the reasons for the relief sought, revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require. The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court.

No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification in any court, but only from the date that notice of such petition has been given to the responding party.

Any member of the United States Armed Forces Reserves, Virginia National Guard, or Virginia National Guard Reserves, who files a petition or is a party to a petition requesting the adjudication of the custody, visitation or support of a child based on a change of circumstances because one of the parents has been called to active duty, shall be entitled to have such a petition expedited on the docket of the court.

 

Nonetheless, there IS a case precedent for you: Barret v. Commonwealth of Va. et al

 

http://courts.state.va.us/opinions/opncavtx/1332073.txt

 

 

II. Alleged Lack of "Jurisdiction"
DCSE argues that the courts never had "jurisdiction" to change the amount of child
support awarded to mother as father's initial petition requested only that he be awarded child support. We find this argument without merit.
When these parties divorced, the circuit court hearing the matter awarded child support to mother and referred further child support matters to the juvenile and domestic relations district (JDR) court. Father then filed a petition in JDR court asking that mother be required to pay child support to him and listing himself as the petitioner. DCSE claims that, given the request in father's petition, neither the JDR court nor any subsequent court acquired "jurisdiction" to adjust the child support paid to mother and, therefore, acted without authority when they amended the award. DCSE contends, in effect, that the courts only had authority to consider whether to grant the specific relief requested by father.


A trial court is not limited to child support requests made by the parties. As Code  20-108 makes clear, a court can even take action on its own motion:
The court may, from time to time after decreeing as provided in
 20-107.2, on petition of either of the parents, or on its own
motion or upon petition of any probation officer or the Department
of Social Services, which petition shall set forth the reasons for the
relief sought, revise and alter such decree concerning the care,
custody, and maintenance of the children and make a new decree
concerning the same, as the circumstances of the parents and the
benefit of the children may require.

 

Thus, precedent says that the Judge CAN make the child supportingfinding as he determines is best, XXXXX XXXXX child, by simply making a motion on its own, asking itself, if you will, to award child support to mother from father, if the facts so warrant.

 

 

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AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11837
Experience: 19+ Years of Legal Practice in Family law matters.
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AlexiaEsq.
AlexiaEsq.
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