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2023 SESSION
23101531DBe it enacted by the General Assembly of Virginia:
1. That §§ 16.1-278.15 and 20-103 of the Code of Virginia are amended and reenacted as follows:
§ 16.1-278.15. Custody or visitation, child or spousal support generally.
A. In cases involving the custody, visitation or support of a
child pursuant to subdivision A 3 of § 16.1-241, the court may make any order
of disposition to protect the welfare of the child and family as may be made by
the circuit court. The parties to any petition where a child whose custody,
visitation, or support is contested shall show proof that they have attended
within the 12 months prior to their court appearance or that they shall attend
within 45 days thereafter an educational seminar or other like program
conducted by a qualified person or organization approved
by the court Office of the Executive Secretary of the Supreme
Court of Virginia. The court may
require the parties to attend such seminar or program in uncontested cases only
if the court finds good cause. The seminar or other program shall be a minimum
of four hours in length and shall address the effects of separation or divorce
on children, parenting responsibilities, options for conflict resolution and
financial responsibilities. Once a party has completed one educational seminar
or other like program, the required completion of additional programs shall be
at the court's discretion. Parties under this section shall include natural or
adoptive parents of the child, or any person with a legitimate interest as
defined in § 20-124.1. The fee charged a party for participation in such
program shall be based on the party's ability to pay; however, no fee in excess
of $50 may be charged. Whenever possible, before participating in mediation or
alternative dispute resolution to address custody, visitation or support, each
party shall have attended the educational seminar or other like program. The
court may grant an exemption from attendance of such program for good cause
shown or if there is no program reasonably available. Other than statements or
admissions by a party admitting criminal activity or child abuse or neglect, no
statement or admission by a party in such seminar or program shall be
admissible into evidence in any subsequent proceeding. If support is ordered
for a child, the order shall also provide that support will continue to be paid
for a child over the age of 18 who is (i) a full-time high school student, (ii)
not self-supporting, and (iii) living in the home of the parent seeking or
receiving child support, until the child reaches the age of 19 or graduates
from high school, whichever occurs first. The court may also order that support
be paid or continue to be paid for any child over the age of 18 who is (a)
severely and permanently mentally or physically disabled, and such disability
existed prior to the child reaching the age of 18 or the age of 19 if the child
met the requirements of clauses (i), (ii), and (iii); (b) unable to live
independently and support himself; and (c) residing in the home of the parent
seeking or receiving child support. Upon request of either party, the court may
also order that support payments be made to a special needs trust or an ABLE
savings trust account as defined in § 23.1-700.
B. In any case involving the custody or visitation of a child, the court may award custody upon petition to any party with a legitimate interest therein, including, but not limited to, grandparents, stepparents, former stepparents, blood relatives and family members. The term "legitimate interest" shall be broadly construed to accommodate the best interest of the child. The authority of the juvenile court to consider a petition involving the custody of a child shall not be proscribed or limited where the custody of the child has previously been awarded to a local board of social services.
C. In any determination of support obligation under this section, the support obligation as it becomes due and unpaid creates a judgment by operation of law. Such judgment becomes a lien against real estate only when docketed in the county or city where such real estate is located. Nothing herein shall be construed to alter or amend the process of attachment of any lien on personal property.
D. Orders entered prior to July 1, 2008, shall not be deemed void or voidable solely because the petition or motion that resulted in the order was completed, signed and filed by a nonattorney employee of the Department of Social Services.
E. In cases involving charges for desertion, abandonment or failure to provide support by any person in violation of law, disposition shall be made in accordance with Chapter 5 (§ 20-61 et seq.) of Title 20.
F. In cases involving a spouse who seeks spousal support after having separated from his spouse, the court may enter any appropriate order to protect the welfare of the spouse seeking support.
G. In any case or proceeding involving the custody or visitation of a child, the court shall consider the best interest of the child, including the considerations for determining custody and visitation set forth in Chapter 6.1 (§ 20-124.1 et seq.) of Title 20.
G1. In any case or proceeding involving the custody or visitation of a child, as to a parent, the court may, in its discretion, use the phrase "parenting time" to be synonymous with the term "visitation."
H. In any proceeding before the court for custody or visitation of a child, the court may order a custody or a psychological evaluation of any parent, guardian, legal custodian or person standing in loco parentis to the child, if the court finds such evaluation would assist it in its determination. The court may enter such orders as it deems appropriate for the payment of the costs of the evaluation by the parties.
I. When deemed appropriate by the court in any custody or visitation matter, the court may order drug testing of any parent, guardian, legal custodian or person standing in loco parentis to the child. The court may enter such orders as it deems appropriate for the payment of the costs of the testing by the parties.
J. In any custody or visitation case or proceeding wherein an order prohibiting a party from picking the child up from school is entered pursuant to this section, the court shall order a party to such case or proceeding to provide a copy of such custody or visitation order to the school at which the child is enrolled within three business days of such party's receipt of such custody or visitation order.
If a custody determination affects the school enrollment of the child subject to such custody order and prohibits a party from picking the child up from school, the court shall order a party to provide a copy of such custody order to the school at which the child will be enrolled within three business days of such party's receipt of such order. Such order directing a party to provide a copy of such custody or visitation order shall further require such party, upon any subsequent change in the child's school enrollment, to provide a copy of such custody or visitation order to the new school at which the child is subsequently enrolled within three business days of such enrollment.
If the court determines that a party is unable to deliver the custody or visitation order to the school, such party shall provide the court with the name of the principal and address of the school, and the court shall cause the order to be mailed by first class mail to such school principal.
Nothing in this section shall be construed to require any school staff to interpret or enforce the terms of such custody or visitation order.
§ 20-103. Court may make orders pending suit for divorce, custody or visitation, etc.
A. In suits for divorce, annulment and separate maintenance,
and in proceedings arising under subdivision A 3 or subsection L of § 16.1-241,
the court having jurisdiction of the matter may, at any time pending a suit
pursuant to this chapter, in the discretion of such court, make any order that
may be proper (i) to compel a spouse to pay any sums necessary for the
maintenance and support of the petitioning spouse, including (a) an order that
the other spouse provide health care coverage for the petitioning spouse,
unless it is shown that such coverage cannot be obtained, or (b) an order that
a party pay secured or unsecured debts incurred jointly or by either party,
(ii) to enable such spouse to carry on the suit, (iii) to prevent either spouse
from imposing any restraint on the personal liberty of the other spouse, (iv)
to provide for the custody and maintenance of the minor children of the
parties, including an order that either party or both parties provide health
care coverage or cash medical support, or both, for the children, (v) to
provide support, calculated in accordance with § 20-108.2, for any child of the
parties to whom a duty of support is owed and to pay or continue to pay support
for any child over the age of 18 who meets the requirements set forth in
subsection C of § 20-124.2, (vi) for the exclusive use and possession of the
family residence during the pendency of the suit, (vii) to preserve the estate
of either spouse, so that it be forthcoming to meet any decree which may be
made in the suit, (viii) to compel either spouse to give security to abide such
decree, or (ix)(a) to compel a party to maintain any existing policy owned by
that party insuring the life of either party or to require a party to name as a
beneficiary of the policy the other party or an appropriate person for the
exclusive use and benefit of the minor children of the parties and (b) to
allocate the premium cost of such life insurance between the parties, provided
that all premiums are billed to the policyholder. Nothing in clause (ix) shall
be construed to create an independent cause of action on the part of any beneficiary
against the insurer or to require an insurer to provide information relating to
such policy to any person other than the policyholder without the written
consent of the policyholder. The parties to any petition where a child whose
custody, visitation, or support is contested shall show proof that they have
attended within the 12 months prior to their court appearance or that they
shall attend within 45 days thereafter an educational seminar or other like
program conducted by a qualified person or organization approved
by the court Office of the Executive
Secretary of the Supreme Court of Virginia,
except that the court may require the parties to attend such seminar or program
in uncontested cases only if the court finds good cause. The seminar or other
program shall be a minimum of four hours in length and shall address the
effects of separation or divorce on children, parenting responsibilities,
options for conflict resolution and financial responsibilities. Once a party
has completed one educational seminar or other like program, the required
completion of additional programs shall be at the court's discretion. Parties
under this section shall include natural or adoptive parents of the child, or
any person with a legitimate interest as defined in § 20-124.1. The fee charged
a party for participation in such program shall be based on the party's ability
to pay; however, no fee in excess of $50 may be charged. Whenever possible,
before participating in mediation or alternative dispute resolution to address
custody, visitation or support, each party shall have attended the educational
seminar or other like program. The court may grant an exemption from attendance
of such program for good cause shown or if there is no program reasonably
available. Other than statements or admissions by a party admitting criminal
activity or child abuse, no statement or admission by a party in such seminar
or program shall be admissible into evidence in any subsequent proceeding.
A1. Any award or order made by the court pursuant to subsection A shall be paid from the post-separation income of the obligor unless the court, for good cause shown, orders otherwise. Upon the request of either party, the court may identify and state in such order or award the specific source from which the financial obligation imposed is to be paid.
A2. In any case in which the jurisdiction of the juvenile and domestic relations district court has been divested pursuant to § 16.1-244 and no final support order has been entered, any award for child support or spousal support in the circuit court pursuant to subsection A shall be retroactive to the date on which the proceeding was commenced by the filing of the action in the juvenile and domestic relations district court, provided that the petitioner exercised due diligence in the service of the respondent.
B. In addition to the terms provided in subsection A, upon a showing by a party of reasonable apprehension of physical harm to that party by such party's family or household member as that term is defined in § 16.1-228, and consistent with rules of the Supreme Court of Virginia, the court may enter an order excluding that party's family or household member from the jointly owned or jointly rented family dwelling. In any case where an order is entered under this paragraph, pursuant to an ex parte hearing, the order shall not exclude a family or household member from the family dwelling for a period in excess of 15 days from the date the order is served, in person, upon the person so excluded. The order may provide for an extension of time beyond the 15 days, to become effective automatically. The person served may at any time file a written motion in the clerk's office requesting a hearing to dissolve or modify the order. Nothing in this section shall be construed to prohibit the court from extending an order entered under this subsection for such longer period of time as is deemed appropriate, after a hearing on notice to the parties. If the party subject to the order fails to appear at this hearing, the court may extend the order for a period not to exceed six months.
C. In cases other than those for divorce in which a custody or visitation arrangement for a minor child is sought, the court may enter an order providing for custody, visitation or maintenance pending the suit as provided in subsection A. The order shall be directed to either parent or any person with a legitimate interest who is a party to the suit.
D. Orders entered pursuant to this section which provide for custody or visitation arrangements pending the suit shall be made in accordance with the standards set out in Chapter 6.1 (§ 20-124.1 et seq.). Orders entered pursuant to subsection B shall be certified by the clerk and forwarded as soon as possible to the local police department or sheriff's office which shall, on the date of receipt, enter the name of the person subject to the order and other appropriate information required by the Department of State Police into the Virginia crime information network system established and maintained by the Department of State Police pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. If the order is later dissolved or modified, a copy of the dissolution or modification shall also be certified, forwarded and entered in the system as described above.
E. There shall be a presumption in any judicial proceeding for pendente lite spousal support and maintenance under this section that the amount of the award that would result from the application of the formula set forth in this section is the correct amount of spousal support to be awarded. The court may deviate from the presumptive amount as provided in subsection H.
F. If the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.
G. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 26 percent of the payor spouse's monthly gross income and 58 percent of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 27 percent of the payor spouse's monthly gross income and 50 percent of the payee spouse's monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section § 20-108.2.
H. The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties' current financial circumstances or the impact of any tax exemption and any credits resulting from such exemptions that indicates the presumptive amount is inappropriate.
I. The presumptive formula set forth in this section shall only apply to cases where the parties' combined monthly gross income does not exceed $10,000.
J. An order entered pursuant to this section shall have no presumptive effect and shall not be determinative when adjudicating the underlying cause.