THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, September 13, 1995 TAG: 9509130401
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MATTHEW BOWERS, STAFF WRITER
LENGTH: Long : 101 lines
In a ruling that could cost some divorced parents hundreds of dollars a month, Virginia's second-highest court now says a ``day'' is 24 hours long.
The court was talking about visitation and child support.
Consider this scenario:
A parent without custody, usually a father, picks up his daughter after school at 3 p.m. He feeds her dinner, helps her with her homework, rents her videos, puts her to bed at night and feeds her breakfast in the morning. He fixes her lunch for school and then drops her off for classes at 8:30 a.m.
But since she spends the next 6 1/2 hours in school, the time the two have spent together doesn't count as a full ``day'' when it comes to figuring the parent's child-support obligation, according to the state's Court of Appeals.
In other words, the parent doesn't get credit for the day under the state's 3-year-old shared-custody law. That law allows reduced child-support payments for parents without primary custody of their children when they have visitation more than 110 days a year.
That's now 110 days of 24 consecutive hours. In a ground-breaking 6-3 decision, the court last week rejected the appeal of R. Michael Ewing of Chesapeake.
He had argued that it wasn't fair that his weekly overnight visitation with his 10-year-old daughter didn't count as a full ``day,'' even though the girl's mother didn't see her daughter for about 30 hours, from before school on Tuesdays until after work on Wednesdays.
If the partial ``days'' did count, they would give Ewing 124 visitation days a year and could reduce his $468 monthly child-support obligation by $150 to $180. But Ewing said his court fight isn't about money.
``To me, it's a matter of principle,'' he said. Ewing is president of the Children's Rights Council of Tidewater Virginia, a group that lobbies for gender-neutral application of laws in divorce, custody and child-support matters, and supports shared parenting.
``It's really this: Is it really fair and equitable to apply different standards to custodial and non-custodial parents? . . . It's not. It's not fair.''
Three dissenting judges agreed. They said they would define a ``day'' for custody purposes as ``the majority of a twenty-four hour period, including an overnight,'' citing similar applications in most other states with shared-custody laws. The majority, however, decided that when the General Assembly wrote ``day'' into the law, it meant a regular, solar, around-the-clock, 24-hour day.
Family lawyers around the state were glad for some guidance on the ``day'' issue, even if they didn't all agree with the appeals court's decision. Until last week's ruling, trial courts across Virginia applied varying standards for what a ``day'' was.
``You've got to have a rule; now we know what the rule is,'' said Timothy P. Sceviour, a Norfolk lawyer who represents Ewing's former wife.
He and others said the ``day'' ruling would encourage more visitation. Custodial parents - predominantly mothers - will be less worried about the occasional overnight stay adding up to 110 days and cutting into the child support they receive.
``It actually will be helpful in resolving a lot of the conflict over the noncustodial parent trying to get 110 or 111 days,'' said Charles R. Hofheimer, a Virginia Beach attorney who represents women in divorces.
Hofheimer said the ruling also could reduce the number of parents using visitation solely as a way to reduce their support payments.
``That person should have a tougher time,'' he said. ``And maybe, just maybe, it'll get these people thinking of the best interests of the child before the divorce.''
George A. Christie, president of the Hampton Roads Family Law Organization, likes having a rule but doesn't like what it is. He considers the dissenting judges' idea of counting partial days to be more workable and fair.
``It is a very significant decision,'' he said. ``I think there will be far fewer shared-custody arrangements.''
Ewing, his lawyer and other critics of the ruling agree. They said requiring a 24-hour ``day'' would make it too hard to reach the 110-day minimum that few reached as it was.
Ewing said the decision also ignores the General Assembly's intent, which he said was ``to recognize that both parents have substantial fixed costs of raising children. It's contrary to that notion that only a custodial parent must maintain a suitable home.''
Ewing keeps and furnishes an extra bedroom for his daughter, and provides clothes, food and entertainment, he said.
``If you have someone who's a regular-contact parent, like Mr. Ewing, this is to compensate for that,'' said Lawrence D. Diehl, a Hopewell lawyer who represented Ewing and last year chaired the Family Law Section of the Virginia State Bar.
Some noncustodial parents might cut back on their visitation because they won't be able to afford to do as much with their children and still maintain their court-ordered child-support payments, he and Ewing said.
``I think it's going to discourage fathers who want to spend more time with their kids,'' Diehl said. ``Who loses? The kids.'' ILLUSTRATION: Photo
PAUL AIKEN/Staff file
R. Michael Ewing of Chesapeake wanted his visits with his daughter
Ashley to count as a full day.
KEYWORDS: CHILD CUSTODY by CNB