I. BACKGROUND

The House Courts of Justice Committee tabled legislation in the 2003 session that amended Virginia's child support guideline in accordance with the recommendations of the 2001-2002 Triennial Review Panel. At session close, the Committee recommended creation of the Ad Hoc Subcommittee Studying the Child Support Guideline ("Ad Hoc Subcommittee") to provide a forum for examining that 2003 legislation in more detail.

The Ad Hoc Subcommittee's members were Delegates Terry G. Kilgore (Subcommittee Chairman), Joseph P. Johnson, Jr., Michele B. McQuigg, and Brian J. Moran; and Senators Harry B. Blevins and Henry L. Marsh, III. Delegate Vivian E. Watts and Senator Frederick M. Quayle were invited guests.

II. MEETINGS

The Ad Hoc Subcommittee held two meetings; summaries of both meetings are available on the Ad Hoc Subcommittee's website at http://www.dls.state.va.us/chld_support.htm. The October 21, 2003 meeting focused on policy issues; the November 18, 2003 meeting focused on the child support schedule.

Meeting attendees included several members of the 2001-2002 Triennial Panel (Joseph Crane, Assistant Director of Program Administration and Support, Division of Child Support Enforcement (Chairman of the 2001-2002 Panel), Murray Steinberg, Lawrence D. Diehl, Esq., the Honorable A. Ellen White, Judge, Campbell County Juvenile and Domestic Relations Court, the Honorable Patricia West, Virginia Beach Circuit Court); the economic adviser to the Triennial Panel (Dr. William Rodgers); Ray Hartz, Esq., Virginia Poverty Law Center; Richard J. Byrd, Esq., appearing for the Virginia Bar Association Coalition on Family Law Legislation; Uriel Johnson, National Partnership for Community Leadership; members of Fathers for Virginia (Ron Grignol, Archer Crebbs); an expert witness for Fathers for Virginia (Mark Rogers); and noncustodial fathers (Aubrey-Eel, Larry White, Rob Ingalls, Fred Hawkins and Craig Yohn).

III. KEY ISSUES

1. Virginia's guideline was established in 1988, and is based on data from the 1970s. Although the schedule "self-adjusts" for inflation (by increasing child support payments as income increases), the data may be inherently flawed due to cultural changes and improvements in data collection techniques.

2. No state or the federal government has reliable actual data on the costs of raising a child in a non-intact household. This necessitates the use of data from intact families for developing schedule amounts. The schedule in the 2003 legislation contained a "separate household discount" to reflect the expenditures non-custodial parents make during parenting time and the fixed cost of establishing a second home. Opponents argue that use of data from intact families does not accurately capture actual expenses of non-intact families.

3. The income shares model (which Virginia uses) takes as its basic premise that children should share in a parent's income as though the union still existed, hence the indexing of the child support amounts to income increases. The Melson model is a little-used modified version of the income shares approach. "Cost-sharing" allocates costs on an actual, real-time basis and "income equalization" combines both parents' incomes and divides them equally to assess child support. Neither of the latter two methods is used by any state.

4. From a practice perspective, it appears that most judges routinely use the deviation factor for imputing income. The deviation factors associated with tax issues are less frequently applied because they entail complicated calculations difficult to complete within limited time constraints. The additional deviation factors contained in the proposed legislation are unclear and might be difficult to apply.

5. Specific concerns about the 2003 legislation, as voiced at the Ad Hoc Subcommittee's meetings include:

• Deviations to accommodate local prevailing wages would be difficult to calculate;
• The retroactivity provision has potentially wide-ranging implications;
• The statement regarding 60 - 90 days of visitation makes explicit an assumption and will create more conflict;
• The recitation of economic assumptions is inappropriate and will create more conflict;
• The self-support reserve requires calculations to be conducted in accordance with federal not state law and should be eliminated; and
• The child care benefits depend on an individual's tax status and phase out at higher incomes and should be revised to provide a court with the flexibility to take into consideration tax consequences of child care expenses.
• The amounts in the revised schedule are too high at the lower income levels and too low at higher income levels.

IV. RECOMMENDATION

The Division of Child Support Enforcement, the VBA Coalition on Family Law Legislation, and a representative of the Triennial Panel reached a compromise on potential changes to the child support guideline. The compromise proposal contains the following components:

• Provides that "gross income" shall not include income received by the payor parent from a second job that was taken in order to payoff child support arrearages and that cessation of the income is not the basis for a material change in circumstances;

• Replaces the provision for "extraordinary medical and dental expenses" with a requirement that the parents pay in proportion to their incomes any reasonable and necessary unreimbursed medical or dental expenses in excess of $250 per year per child;

• Directs the court to consider actual tax savings a party derives from the child-care cost deductions or credits;

• Changes the guideline review period from being completed every three years to being completed every four years; and

• Modifies the schedule of child support so that transition between the increases in the support amounts is more gradual.

The Subcommittee recommended that staff prepare legislation based on the compromise proposal so that it would be available in the event someone wished to request legislation. The Subcommittee took no position relative to the model legislation.

In the 2004 General Assembly Session, Senator Quayle introduced legislation (Senate Bill 208) containing all provisions of the model legislation except for the changes to the schedule amounts. Delegate Marrs introduced House Bill 511, which made consistent the treatment of extraordinary medical expenses across all forms of child custody arrangements. The two bills eventually went into conference and were merged so that identical bills, each containing all provisions of the other, were sent to the Governor. Senate Bill 208 also contains some additional necessary conforming amendments offered by the Governor and accepted by the General Assembly. With this successful legislation, the Ad Hoc Subcommittee has completed its work and will not meet in 2004.