THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, September 25, 1995 TAG: 9509220020
SECTION: FRONT PAGE: A6 EDITION: FINAL
TYPE: Editorial
LENGTH: Medium: 58 lines
A 1992 state law provides that if a divorced parent who pays child support to his or her ex spends more than 110 days a year with their child, he or she may reduce the amount of that support. Trouble is the General Assembly didn't define what makes a day.
In a 6-3 decision recently, the Virginia Court of Appeals did: 24 consecutive hours of literal custody.
Hence the appellate jurists rejected R. Michael Ewing's appeal of a lower court's finding that he didn't meet the test for such relief. Ewing, who lives in Chesapeake, shares custody of his 10-year-old daughter with her mother. While the mother has primary custody, the girl spends considerable time with her father, including regular midweek visits. He picks her up after school each Tuesday, keeps her overnight and returns her to school Wednesday morning.
It was this schedule, with each visit lasting almost 18 hours, that the court ruled did not constitute a day. On several counts the decision is troubling.
First, as the dissenting judges pointed out, in most of some 20 other states with custody-sharing laws, what's required of the parent in the secondary role is custody for most of a 24-hour period, including an overnight stay. That's a reasonable definition and certainly consistent with the legislation's spirit.
Second, confidence in and respect for the law erodes when there's the appearance of unfairness. In Ewing's case, the daughter is away from her mother for some 30 hours or more, but the mother in effect gets credit for hours spent in school both days, Ewing neither one.
Third, and most troubling, the ruling potentially jeopardizes the precise result that the law is designed to encourage: divorced couples working out a fuller sharing of custody, helping the child to develop solid relationships with both parents, hence benefiting the child.
Granted, some spouses with only secondary custody might view the law primarily as a money-saving opportunity. Conversely, some parents receiving the support checks may not want the amount reduced even if it does give the child more time with the other parent.
But the parent with primary custody certainly would realize some savings if the child were away roughly a third of the time or more. And a parent seeing the child more than 110 days a year would normally incur considerable costs. Ewing, for example, furnishes an extra bedroom for his daughter and provides clothes, food and entertainment.
The high rate of divorce today is a modern American tragedy. And the most serious casualties all too often are the children.
This ruling threatens to penalize them further in Virginia. The 1996 Assembly, by amending the statute to incorporate the language of the dissenting jurists, can - and should - move swiftly to undo the damage. by CNB