                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Overton
Argued at Alexandria, Virginia


WILLIAM RUSSELL
                                                  OPINION BY
v.   Record No. 1315-00-4                   JUDGE NELSON T. OVERTON
                                                  MAY 1, 2001
CHARLOTTE RUSSELL, WYOTT RUSSELL AND
 TERI ESPINOSA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       F. Bruce Bach, Judge

           Sandra L. Havrilak (Marlene M. Hahn; Hicks &
           Havrilak, P.C., on brief), for appellant.

           No brief or argument for appellees.


     William Russell (grandfather) appeals the decision of the

circuit court awarding child support to Charlotte Russell

(grandmother).    On appeal, grandfather contends the circuit court

erred by finding that, as a joint legal custodian of his

grandchild, he owes that child a duty of support despite the fact

that the parents retain residual parental rights and are capable

of providing support for their child.      For the reasons that

follow, we agree with grandfather and reverse the decision of the

circuit court.

                              BACKGROUND

     On April 6, 1999, the Fairfax County Juvenile and Domestic

Relations District Court entered a consent order granting joint
legal custody of Alexandra Russell, then eight years old, to her

paternal grandparents.   Grandfather and grandmother have been

divorced since 1993.    The consent order delineates, in detail, the

visitation schedule that Alexandra's grandparents and parents must

follow.   The order clearly provides that mother's and father's

parental rights are still in force and their consent is

specifically required before certain major decisions may be made

concerning Alexandra.    However, the order does not mention the

issue of Alexandra's support.

     On April 9, 1999, grandmother filed a petition for child

support against grandfather.    Grandmother did not name Alexandra's

parents in the suit.    Grandfather filed a demurrer and moved to

join Teri Espinosa (mother) and Wyott Russell (father).   The

juvenile court overruled grandfather's demurrer, joined mother and

father to the suit, and ordered grandfather, mother and father to

pay support to grandmother, with whom Alexandra lives.

Grandfather noted his appeal to the circuit court and again filed

a demurrer.   The circuit court overruled the demurrer, finding

that grandfather, as a legal custodian, was financially

responsible for supporting Alexandra, citing Code § 16.1-228.      On

May 5, 2000, the court entered an order finding that grandfather,

grandmother, father, and mother all owe a duty of support and

applied the guidelines for determining child support set forth in

Code § 20-108.2 by adding the gross incomes of all four parties



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and then allocating the support amount due from each party in

proportion to his or her income. 1

                               ANALYSIS

     Grandfather and grandmother were granted joint legal custody

of Alexandra pursuant to a consent order.    Grandmother has

physical custody.    "Legal custody" is defined as

          (i) a legal status created by court order
          which vests in a custodian the right to have
          physical custody of the child, to determine
          and redetermine where and with whom he shall
          live, the right and duty to protect, train
          and discipline him and to provide him with
          food, shelter, education and ordinary
          medical care, all subject to any residual
          parental rights and responsibilities or (ii)
          the legal status created by court order of
          joint custody as defined in § 20-107.2.

Code § 16.1-228.    Grandfather's rights and duties with regard to

Alexandra are "all subject to any residual parental rights and

responsibilities."    Id.   "Residual parental rights and

responsibilities" are defined as:

          all rights and responsibilities remaining
          with the parent after the transfer of legal
          custody or guardianship of the person,
          including but not limited to the right of
          visitation, consent to adoption, the right
          to determine religious affiliation and the
          responsibility for support.



     1
       The trial court found the monthly incomes of the parties
to be as follows:

          Grandmother   - $3,083.00
          Grandfather   - $5,000.00
          Father        - $6,760.00
          Mother        -   $867.00

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Id.    Because they retain their residual parental rights, mother

and father have a clear duty to provide support for Alexandra.

See id.; Code § 20-124.2.    "It is well settled that both parents

owe a duty of support to their child."    Commonwealth v.

Chamberlain, 31 Va. App. 533, 538, 525 S.E.2d 19, 20-21 (2000).

       Code § 20-124.2 provides, in pertinent part, that "[t]he

court may order that support be paid for any child of the

parties."   The term "parties" in this section refers back to

Code § 20-107.2, which states:

            Upon entry of a decree providing (i) for the
            dissolution of a marriage, (ii) for a
            divorce, whether from the bond of matrimony
            or from bed and board, (iii) that neither
            party is entitled to a divorce, or (iv) for
            separate maintenance, the court may make
            such further decree as it shall deem
            expedient concerning the custody or
            visitation and support of the minor children
            of the parties as provided in Chapter 6.1
            (§ 20-124.1 et seq.) of Title 20, including an
            order that either party provide health care
            coverage.

       Grandfather is not a "party" under Code § 20-107.2.    The

circuit court did not have the authority to require support

payments from grandfather to grandmother.   We have held that a

former stepparent has no duty to support his or her former

spouse's child absent a clear agreement to do so or the formal

adoption of the child.    See NPA v. WBA, 8 Va. App. 246, 249, 380

S.E.2d 178, 180 (1989).   Grandfather did not contractually

obligate himself to support Alexandra, and he has not adopted

her.   Instead, mother and father, because they retain their

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residual parental rights, are the sole parties who have a duty

of support and in the instant case, the financial ability to

support Alexandra.    Under Code § 16.1-228, grandmother and

grandfather, as legal custodians, have the duty to provide

Alexandra "with food, shelter, education and ordinary medical

care," but no more.   Grandfather must provide these necessities

for Alexandra during the periods of the year that she stays with

him, but he is not similarly responsible for Alexandra while she

is staying with grandmother.

     Accordingly, the decision of the trial court is reversed

and the case remanded to determine the support obligations of

mother and father pursuant to the support guidelines of Code

§ 20-108.2.   In Reid v. Reid, 245 Va. 409, 429 S.E.2d 208

(1993), the Supreme Court announced that under Code § 20-107.1,

a trial court does not have the authority to order restitution

of amounts paid pursuant to a spousal support order when that

order has been reversed on appeal.      By contrast, in this case,

the trial court did not have the authority to order grandfather

to make child support payments.   Consequently, the support

obligations of mother and father shall be applied retroactively

to the date of filing of grandmother's petition, and grandfather

shall be reimbursed for any support payments he made under the

circuit court's order.

                                               Reversed and remanded.



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