Can an Affidavit Be Used in Virginia to Terminate Duty of Child Support?
Full Question:
Answer:
Child support is typically determined in a paternity or divorce action. An affidavit between the parents to waive child support is generally not enforceable. If a paternity or divorce action isn't used to establish support, the duty of support is typically terminated in a termination of parental rights. A petition to relinquish parental rights may be made voluntarily. Please see the statute below.
Some courts will not allow the parties to waive child support requirement even if the parties are in agreement. Generally, the right to waive the support is construed to belong to the child and not to the parent with whom the child lives. Since the child is not competent to make this kind of decision, the court is very reluctant to allow child support to be waived. It will be a subjective matter of determination for the court based on all the facts and circumstances in each case. The overriding determining factor is the child’s best interest and the child support ordered in the decree will ultimately be a matter for the court to specify.
A parent may also have rights terminated, either by voluntary relinquishment or judicial termination. A judicial termination requires proof that the parent is unfit and/or poses a threat of harm to the child. A termination of parental rights voids any rights and obligations toward the child. The parent will no longer have rights to custody or visitation and will no longer owe a duty of support. However, it is possible that back support owed may still be collected.
Termination of parental rights is a court order that severs the rights, powers, privileges, immunities, duties and obligations between a parent and child. A termination of parental rights may be voluntary or involuntary. Even if the statutory grounds for termination of parental rights are established, the court need not terminate parental rights if such action is not in the child’s best interests. Such a decision may be made based upon, among other factors, abandonment by a parent, child abuse, unfitness of a parent, and other injuries to a child. The parent whose rights are sought to be terminated has certain due process rights, such as proper notice and a hearing. After the termination of parental rights, the child is placed with someone other than the parent whose rights are terminated, such as the other parent or a foster home. A parent whose rights are terminated is generally relieved of the obligation to pay child support, however, courts are reluctant to allow parents to avoid their child support obligations by waiving all parental rights to their children. Some courts disallow a parent to terminate parental rights in order to avoid child support payments
Unmarried fathers have rights and duties similar to those of married fathers. Couples who are living together but are not married should take steps to ensure that both are recognized as the legal parents. Both parents can be listed on the birth certificate. A parent who is not listed may be able to be added after the birth of a child if the parent contacts the state Bureau of Vital Statistics in which the birth took place. The father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the court orders the birth certificate to be changed to reflect the father’s name. A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity or paternity may be established by filing a civil lawsuit. Generally, paternity must be established for the father to seek custody and/or visitation rights with his child. Paternity refers to the legal acknowledgment of the parental relationship between a father and his child.
Parents are legally obligated to provide their children with all the necessities of life. The failure of parents to marry does not affect their responsibility to support their children. If parents are unmarried and cannot agree upon how much each should contribute toward the support of their children, the courts may decide. A court can order one parent to make specified payments to the other for child support. State laws provide that biological parents make all the decisions involving their children, including education, health care, and religious upbringing. Parents are not required to secure the legal right to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about who has the right to make these decisions courts can decide.
The following are VA statutes:
Section 16.1-277.02. Petition for relief of care and custody.
A. Requests for petitions for relief of the care and custody of a child
shall be referred initially to the local department of social services
for investigation and the provision of services, if appropriate, in
accordance with the provisions of Section 63.2-319 or Chapter 15 (Section
63.2-1500 et seq.) of Title 63.2. Upon the filing of a petition for
relief of a child's care and custody pursuant to subdivision A 4 of
Section 16.1-241, the court shall appoint a guardian ad litem to
represent the child in accordance with the provisions of Section 16.1-266,
and shall schedule the matter for a hearing on the petition. Such hearing
on the petition may include partial or final disposition of the matter.
The court shall provide notice of the hearing and a copy of the petition
to the following, each of whom shall be a party entitled to participate
in the proceeding:
1. The child, if he is twelve years of age or older;
2. The guardian ad litem for the child;
3. The child's parents, custodian or other person standing in loco
parentis to the child. No such notification shall be required, however, if
the judge certifies on the record that the identity of the parent is not
reasonably ascertainable. An affidavit of the mother that the identity of
the father is not reasonably ascertainable shall be sufficient evidence
of this fact, provided there is no other evidence before the court which
would refute such an affidavit. The hearing on the petition shall be held
pursuant to this section although a parent fails to appear and is not
represented by counsel, provided personal or substituted service was made
on the parent, or the court determines that such person cannot be found,
after reasonable effort, or in the case of a person who is without the
Commonwealth, the person cannot be found or his post office address
cannot be ascertained after reasonable effort. However, in the case of a
hearing to grant a petition for permanent relief of custody and terminate
a parent's residual parental rights, notice to the parent whose rights
may be affected shall be provided in accordance with the provisions of
Sections 16.1-263 and 16.1-264; and
4. The local board of social services. Upon receiving notice of the
hearing pursuant to this section, the local board of social services shall
investigate the matter and provide services, as appropriate, in accordance
with the provisions of Section 63.2-319 or Chapter 15 (Section 63.2-1500 et
seq.) of Title 63.2.
B. At the hearing, the local board of social services, the child, the
child's parents, guardian, legal custodian or other person standing in
loco parentis and any other family or household member of the child to
whom notice was given shall have the right to confront and cross-examine
all adverse witnesses and evidence and to present evidence on their own
behalf.
C. At the conclusion of the hearing on the petition, the court shall
make a finding, based upon a preponderance of the evidence, whether there
is good cause shown for the petitioner's desire to be relieved of the
child's care and custody, unless the petition seeks permanent relief of
custody and termination of parental rights. If the petition seeks
permanent relief of custody and termination of parental rights, the court
shall make a finding, based upon clear and convincing evidence, whether
termination of parental rights is in the best interest of the child. If
the court makes either of these findings, the court may enter:
1. A preliminary protective order pursuant to Section 16.1-253;
2. An order that requires the local board of social services to provide
services to the family as required by law;
3. An order that is consistent with any of the dispositional alternatives
pursuant to Section 16.1-278.3; or
4. Any combination of these orders.
Any such order transferring legal custody of the child shall be made in
accordance with the provisions of subdivision A 5 of Section 16.1-278.2
and shall be subject to the provisions of subsection C1 of this section.
This order shall include, but need not be limited to, the following
findings:
(i) that there is no less drastic alternative to granting the
requested relief; and
(ii) that reasonable efforts have been made to.
prevent removal and that continued placement in the home would be contrary
to the welfare of the child, if the order transfers legal custody of the
child to a local board of social services
Any order terminating residual
parental rights shall be accompanied by an order continuing or granting
custody to a local board of social services, to a licensed child-placing
agency or the granting of custody or guardianship to a relative or other
interested individual. Such an order continuing or granting custody to a
local board of social services or to a licensed child-placing agency
shall indicate whether that board or agency shall have the authority to
place the child for adoption and consent thereto. At any time subsequent
to the transfer of legal custody of the child pursuant to this section, a
birth parent or parents of the child and the pre-adoptive parent or
parents may enter into a written post-adoption contact and communication
agreement in accordance with the provisions of Sections 16.1-283.1 and
63.2-1228.1. The court shall not require a written post-adoption contact
and communication agreement as a precondition to entry of an order in any
case involving the child.
The court shall schedule a subsequent hearing within seventy-five days
of the hearing held pursuant to this section
(i) to enter a final order
of disposition pursuant to Section 16.1-278.3 or
(ii) if the child is
placed in foster care, for review of the foster care plan filed pursuant
to Section 16.1-281.
If a party is required to be present at the
subsequent hearing, and
(i) is present at the hearing on the petition,
the party shall be given notice of the date set for the subsequent
hearing;
(ii) if not present, shall be summoned as provided in Section
16.1-263.
C1. Any order transferring temporary custody of the child to a relative
or other interested individual pursuant to subsection C of this section
shall be entered only upon a finding, based upon a preponderance of the
evidence, that the relative or other interested individual is one who
(i)
is found by the court to be willing and qualified to receive and care for
the child;
(ii) is willing to have a positive, continuous relationship
with the child; and
(iii) is willing and has the ability to protect the
child from abuse and neglect.
The court's order transferring temporary
custody to a relative or other interested individual should further
provide for compliance with any preliminary protective order entered on
behalf of the child in accordance with the provisions of Section 16.1-253;
and, as appropriate, ongoing provision of social services to the child
and the child's custodian; and court review of the child's placement with
the relative or other individual. Any final order transferring custody of
the child to a relative or other interested individual pursuant to this
section shall, in addition, be entered only after an investigation as
directed by the court and upon a finding, stated in the court's order,
that the relative or other interested individual is one who satisfies
clauses (i), (ii) and (iii) of this subsection and is committed to
providing a permanent, suitable home for the child.
D. The local board or licensed child-placing agency to which authority
is given to place the child for adoption and consent thereto after an
order terminating parental rights is entered pursuant to this section
shall file a written Adoption Progress Report with the juvenile court on
the progress being made to place the child in an adoptive home. The
report shall be filed with the court every six months from the date of
the final order terminating parental rights until a final order of
adoption is entered on behalf of the child in the circuit court. At the
conclusion of the hearing at which termination of parental rights is
ordered and authority is given to the local board or licensed
child-placing agency to place the child for adoption, the juvenile court
shall schedule a date by which the board or agency shall file the first
Adoption Progress Report required by this section. A copy of the Adoption
Progress Report shall be sent by the court to the guardian ad litem for
the child. The court may schedule a hearing on the report with or without
the request of a party.
Section 16.1-278.3. Relief of care and custody.
A. Within seventy-five days of a hearing on a petition for relief of
the care and custody of any child pursuant to Section 16.1-277.02 at
which the court found
(i) good cause for the petitioner's desire to be
relieved of a child's care and custody or
(ii) that permanent relief of
custody and termination of residual parental rights is in the best
interest of the child, a dispositional hearing shall be held, if a final
order disposing of the matter was not entered at the conclusion of the
hearing on the petition held pursuant to Section 16.1-277.02.
B. Notice of the dispositional hearing shall be provided to the local
department of social services, the guardian ad litem for the child, the
child if he is at least twelve years of age, and the child's parents,
custodian or other person standing in loco parentis. However, if a
parent's residual parental rights were terminated at the hearing on the
petition held pursuant to Section 16.1-277.02, no such notice of the
hearing pursuant to this section shall be provided to the parent. The
hearing shall be held and a dispositional order may be entered, although
a parent, guardian, legal custodian or person standing in loco parentis
fails to appear and is not represented by counsel, provided personal or
substituted service was made on the person, or the court determines that
the person cannot be found, after reasonable effort, or in the case of a
person who is without the Commonwealth, the person cannot be found or his
post office address cannot be ascertained after reasonable effort.
However, in the case of a hearing to grant a petition for permanent
relief of custody and terminate a parent's residual parental rights,
notice to the parent whose rights may be affected shall be provided in
accordance with the provisions of Sections 16.1-263 and 16.1-264.
C. The court may make any of the orders of disposition permitted in a
case involving an abused or neglected child pursuant to Section 16.1-278.2.
Any such order transferring legal custody of the child shall be made in
accordance with the provisions of subdivision A 5 of Section 16.1-278.2
and shall be subject to the provisions of subsection D1 of this section.
This order shall include, but need not be limited to, the following
findings: (i) that there is no less drastic alternative to granting the
requested relief; and (ii) that reasonable efforts have been made to
prevent removal and that continued placement in the home would be contrary
to the welfare of the child, if the order transfers legal custody of the
child to a local board of social services. Any preliminary protective
orders entered on behalf of the child shall be reviewed at the
dispositional hearing and may be incorporated, as appropriate, in the
dispositional order. If the child has been placed in foster care, at the
dispositional hearing the court shall review the foster care plan for the
child filed by the local board of social services or child welfare agency
in accordance with Section 16.1-281.
D. If the parent or other custodian seeks to be relieved permanently of
the care and custody of any child and the court finds by clear and
convincing evidence that termination of the parent's parental rights is
in the best interest of the child, the court may terminate the parental
rights of that parent. If the remaining parent has not petitioned for
permanent relief of the care and custody of the child, the remaining
parent's parental rights may be terminated in accordance with the
provisions of Section 16.1-283. Any order terminating parental rights
shall be accompanied by an order
(i) continuing or granting custody to a
local board of social services or to a licensed child-placing agency, or
(ii) granting custody or guardianship to a relative or other interested
individual.
Such an order continuing or granting custody to a local board
of social services or to a licensed child-placing agency shall indicate
whether that board or agency shall have the authority to place the child
for adoption and consent thereto. Proceedings under this section shall be
advanced on the docket so as to provide for their earliest practicable
disposition. At any time subsequent to the transfer of legal custody of
the child pursuant to this section, a birth parent or parents of the
child and the pre-adoptive parent or parents may enter into a written
post-adoption contact and communication agreement in accordance with the
provisions of Sections 16.1-283.1 and 63.2-1228.1. The court shall not
require a written post-adoption contact and communication agreement as a
precondition to entry of an order in any case involving the child.
D1. Any order transferring custody of the child to a relative or other
interested individual pursuant to subsection C or D of this section shall
be entered only upon a finding, based upon a preponderance of the
evidence, that the relative or other interested individual is one who,
after an investigation as directed by the court,
(i) is found by the
court to be willing and qualified to receive and care for the child;
(ii)
is willing to have a positive, continuous relationship with the child;
(iii) is committed to providing a permanent, suitable home for the
child; and
(iv) is willing and has the ability to protect the child from
abuse and neglect; and the order shall so state.
The court's order
transferring custody to a relative or other interested individual should
further provide for, as appropriate, any terms or conditions which would
promote the child's interest and welfare; ongoing provision of social
services to the child and the child's custodian; and court review of the
child's placement.
E. The local board or licensed child-placing agency to which authority
is given to place the child for adoption and consent thereto after an
order terminating parental rights is entered pursuant to this section
shall file a written Adoption Progress Report with the juvenile court on
the progress being made to place the child in an adoptive home. The
report shall be filed with the court every six months from the date of
the final order terminating parental rights until a final order of
adoption is entered on behalf of the child in the circuit court. At the
conclusion of the hearing at which termination of parental rights is
ordered and authority is given to the local board or licensed
child-placing agency to place the child for adoption, the juvenile court
shall schedule a date by which the board or agency shall file the first
Adoption Progress Report required by this section. A copy of the Adoption
Progress Report shall be sent by the court to the guardian ad litem for
the child. The court may schedule a hearing on the report with or without
the request of a party.
F. A dispositional order entered pursuant to this section is a final
order from which an appeal may be taken in accordance with Section
16.1-296.
§ 20-88. Support of parents by children. —
It shall be the joint and several duty of all persons eighteen years of
age or over, of sufficient earning capacity or income, after reasonably
providing for his or her own immediate family, to assist in providing for
the support and maintenance of his or her mother or father, he or she
being then and there in necessitous circumstances.
If there be more than one person bound to support the same parent or
parents, the persons so bound to support shall jointly and severally share
equitably in the discharge of such duty. Taking into consideration the
needs of the parent or parents and the circumstances affecting the
ability of each person to discharge the duty of support, the court having
jurisdiction shall have the power to determine and order the payment, by
such person or persons so bound to support, of that amount for support
and maintenance which to the court may seem just. Where the court
ascertains that any person has failed to render his or her proper share
in such support and maintenance it may, upon the complaint of any party
or on its own motion, compel contribution by that person to any person or
authority which has theretofore contributed to the support or maintenance
of the parent or parents. The court may from time to time revise the
orders entered by it or by any other court having jurisdiction under the
provisions of this section, in such manner as to it may seem just.
The juvenile and domestic relations district court shall have exclusive
original jurisdiction in all cases arising under this section. Any person
aggrieved shall have the same right of appeal as is provided by law in
other cases.
All proceedings under this section shall conform as nearly as possible
to the proceedings under the other provisions of this chapter, and the
other provisions of this chapter shall apply to cases arising under this
section in like manner as though they were incorporated in this
section. Prosecutions under this section shall be in the jurisdiction where the
parent or parents reside.
This section shall not apply if there is substantial evidence of
desertion, neglect, abuse or willful failure to support any such child by
the father or mother, as the case may be, prior to the child's
emancipation or, except as provided hereafter in this section, if a
parent is otherwise eligible for and is receiving public assistance or
services under a federal or state program.
To the extent that the financial responsibility of children for any
part of the costs incurred in providing medical assistance to their
parents pursuant to the plan provided for in § 32.1-325 is not restricted
by that plan and to the extent that the financial responsibility of
children for any part of the costs incurred in providing to their parents
services rendered, administered or funded by the Department of Mental
Health, Mental Retardation and Substance Abuse Services is not restricted
by federal law, the provisions of this section shall apply. A proceeding
may be instituted in accordance with this section in the name of the
Commonwealth by the state agency administering the program of assistance
or services in order to compel any child of a parent receiving such
assistance or services to reimburse the Commonwealth for such portion of
the costs incurred in providing the assistance or services as the court
may determine to be reasonable. If costs are incurred for the
institutionalization of a parent, the children shall in no case be
responsible for such costs for more than sixty months of
institutionalization.
Any person violating the provisions of an order entered pursuant to
this section shall be guilty of a misdemeanor, and on conviction thereof
shall be punished by a fine not exceeding $500 or imprisonment in jail
for a period not exceeding twelve months or both.
