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My husband told me that since he makes more money than me, he will get custody of our children. Is this true?

ATKBy Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in Family Law on Monday, March 4, 2013.

Income and custody of children have virtually nothing to do with one another. One parent having a higher income or superior financial resources does not, in and of itself, make that parent a preferable custodian for minor children. The factors that the court is required, by Virginia law, to consider in making custody and visitation decisions do not include the relative financial means of the parents, or their respective incomes. Rather, the factors focus on each parents’ respective ability to attend to the physical, emotional and academic needs of the children; their respective relationships with the children; their roles in the children’s upbringing; each parent’s propensity to facilitate the other parent’s relationship with the children; and other issues that focus on the children’s best interests.

Only in extreme circumstances in which financial resources are a severe detriment to a parent’s ability to provide for his or her children might income affect a custody decision. Where a parent is unable to afford suitable living accommodations for the minor children, even with the assistance of spousal support or child support, then it is conceivable that fact could impact a court’s determination as to what is in the children’s best interests. For example, if one parent rents a basement apartment with one bedroom and a futon, whereas, the other parent owns a three bedroom single family home, and there are four children, with all other factors being equal, the first parent may have difficulty showing that it is in the children’s best interest to reside in the basement apartment.

That specific example aside, simply having a nicer house, or having more money to spend on groceries, clothes or activities for the children, does not make one parent a more preferable custodian. So long as both parents are capable of meeting the children’s minimum physical needs, then the court will focus on the various factors set forth in the Virginia Code and base its determination on how each factor applies to the parents and children.

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