Perhaps one of the most nerve-wracking times of a parent's life can be when they fear they are at risk of losing rights or access to their child. In best case scenarios parents are able, through their attorneys, finalize a settlement agreement with a fair compromise that caters to the best needs or interests of their child. In other instances, a trial may be necessary to allow the courts to determine exactly what is in the best interest of the child. The one take home message, however, is that any case concerning custody, visitation, or support of a child is always assessed under the same standard: the best interest of the child. In order to properly fight for your child, it is imperative you know some of the basics concerning the law and procedure in the Commonwealth of Virginia, before deciding which attorney will best be able to assist you.What is custody and what are the different kinds of custody?
Simply enough, custody is a responsibility enumerated through the laws of the Commonwealth that gives any parent a legal responsibility to care for their child that is under the age of 18 years old (with a few exceptions). There are two types of custody: legal and physical. Legal custody is essentially the right to make major life decisions concerning your child including but not limited to, decisions regarding their schooling, medical decisions, care and general well-being. Physical custody, on the other hand, is simply a decision which impacts who cares for the child on a day-to-day basis, and where the child spends the most time.
Under that umbrella of legal and physical custody, the parents can be assigned sole and joint legal and physical custody of the child. Most times, parents are awarded joint legal custody of their children, which means that even if the child lives full time with one parent, the other parent is equally involved in making decisions concerning the well-being of the child. Joint physical custody is also an option which means that the child lives at one parent's home 50% of the time, and the other parent's home the remaining 50% of the time. However, this does not necessarily mean a perfectly split arrangement; instead, what that means is that a judge will take all factors into consideration and come up with an arrangement that will best suit the child's circumstances that will ultimately lead to equal amounts of days out of the year spent with each parent. The final alternative is sole custody, which basically means that only one of the parents has been granted the power to make all legal decisions for the child, and the child physically resides with only them. This does not necessarily terminate the other parent's rights to visitation, and that is a separate issue which can be determined by the court.Visitation
Visitation is a vast arena of custody which allows a parent to have regular visits with their child based upon a predetermined schedule set out in the custody order. It is different than joint physical custody, however in that the child will not be residing with that parent. A physical custody agreement may allot for weekends to be spent with one parent, alternating weekends, alternating weeks, and more. A visitation agreement on the other hand, can be multifaceted in that it can incorporate overnight visits, vacations, holidays, as well as one night per week where a parent may have time with their child. Visitation agreements can also cover whether the visitations need to be supervised by another adult, or whether the court has deemed supervision to be unnecessary. Supervised visitation is considered in situations where the child might be deemed to be in danger or the visiting parent has extenuating circumstances whereby the court finds a supervising adult to be in the best interest of the child.What factors does the court consider when determining custody?
As previously stated, the ultimate standard considered by the court is the best interest of the child. However, since that can be a relatively broad standard, there are some popular factors which allow both attorneys and the judge to narrow the spectrum when making such a decision. The factors include, but are not limited to:
- The age of the child
- The physical and mental condition of the child
- The physical and mental condition of both parents
- The developmental conditions of the child
- The relationship between each parent and the child
- The ability of each parent to assess the changing needs of the child
- The needs of the child and whether they are being met, both in school, medically, and more
- The role which each parent has played in the child's life up that point, and the role they will continue to play
- The propensity of each parent to facilitate the relationship of the child with the other parent, including whether or not one parent has denied access to the child
- The ability and effort put in by each parent to maintain their relationship with the child and the other parent
- Depending on the age of the child, their reasonable preference will be considered
The court will of course consider any other relevant factors when deciding a custody matter, but these help provide a kind of blueprint as to popular issues taken into account.
Many times, a court will appoint an attorney called a guardian ad litem. This attorney is assigned to be the attorney for the child. This attorney will be meeting with both parties, visiting your homes, visiting with the child and finally be allowed to make a recommendation to the court as to how they believe the best interest of the child will be served. If a custody hearing takes place, this attorney will be able to proffer evidence to the court, cross examine any witnesses and more. Their intention is to serve as a neutral third party whose sole role is advocate for the best interests of the child.What if we don't have a custody agreement in place?
If you don't currently have a custody order in place, we suggest getting one formalized for your protection as well as your child's protection. Even if you and the other parent have a reasonable understanding about the set expectations and rules, not having it court ordered can cause strife down the line if there is any disagreement about a certain day or holiday. A custody order will specifically enumerate each parent's rights, visitation schedule, living situation and more, in an enforceable court order. Without such an order, even if the child lives with you and you care for them every day, your legal rights aren't protected.
Some people, of course, opt out of a custody order because they have a symbiotic relationship with their child's parent. If that is the case with you and you are currently involved in a mutually beneficial agreement with your child's parent, we recommend consulting with an attorney to determine what risks exist concerning not having a custody order in place.Who can initiate a case for custody or visitation?
Generally speaking, either parent can move for custody in the Commonwealth. However, a mother's paternity is established at the birth of the child. A father may have to establish paternity before being eligible to move for custody of the child, if it is contested.
Furthermore, the Commonwealth will recognize “persons with a legitimate interest” in the child as moving parties for visitation or custody. These people include:
- Former step-parents
- Blood relatives, other family members
Any other person not listed above who is able to establish with the court that they are a person with a legitimate interest may also be eligible to move forward for visitation.
The most popular of these cases, of course, are the grandparents. Whether you, as a grandparent, will successfully get visitation with your grandchild will mainly be determined based on whether the parents object or not.
For instance, if both parents are deemed to be fit parents, and they both object to you visiting with their child, you will have a heavy burden to prove in court. As the grandparent, you will have to prove that the child's interests, welfare, or health will be harmed if you are denied visitation. For sake of clarification, it will not be sufficient that you are hurt by it, or that the child is simply upset by it if there are other legitimate reasons as to why the parents are objecting. You will have to prove that the child faces actual harm if visitation is denied.
However, if only one parent is objecting to your visitation, your burden lightens drastically. At this point, you would only have to prove to the court that your grandchild's best interests will be served by allowing you visitation.What if we filed for custody and our hearing is months away? What do we do in the meantime?
The court process can be a long and daunting one, especially if your court date isn't for months and there are no rules in place in the meantime. If your case is months away and there are issues concerning the child's living arrangement, visitation or support in the meantime, we can file a motion in limine or a motion for temporary custody. This will allow us to put a brief motion on before a judge prior to your actual custody hearing. At this point, your attorney can proffer facts to the judge to convince the court to put in a temporary order. This temporary order can change where the child resides, the support being paid, and the visitation arrangement until the final hearing.
It is important to note that this temporary hearing is meant only as a stepping stone to custody hearing and not a way to try to get before a judge or expedite your hearing time. Judges will not look favorably upon frivolous motions and it may serve as a strike against you.What is mediation? When is it appropriate?
Mediation is a process whereby both parties sit down with the mediator, who is a neutral third party, in an attempt to compromise and agree on a custody or visitation agreement that is acceptable to both parties involved. In the Commonwealth of Virginia, the law actually states that all cases where mediation may be appropriate should first be submitted to mediation before proceeding to a trial. The goal is simply to try and resolve the issue prior to a trial. No party will be forced to enter into an agreement they are uncomfortable with. If no resolution can be reached, the case will go forward for a hearing before a judge. Mediation is paid for by the state, so no one is out any money for attempting the resolution.What if there is already a court order in place that I want to change?
What was suitable a few years ago might not remain suitable until the child reaches the age of maturity. For that reason, Virginia law allows for modifications of previous custody or support orders to be brought by either party. In order for a modification to take effect, the moving party must prove that there has been a “material change in circumstances” since the entry of the last order. Material changes of circumstance can mean one of many different things. For custody or visitation modifications, it can include anything from a change in the child's life concerning their developmental needs or otherwise, to negative changes in the life of the parent who has primary physical custody, to positive changes in the life of the non-custodial parent. Changes in salary, relocation, marriages, divorces, criminal charges and more are all legitimate changes of circumstances for which a parent may move for modification of a previous order. However, it is important to note that such changes do not guarantee or even strengthen a case for modification. While a judge will take all of these modifications into consideration, any changes will still be evaluated against the best interest of the child. To put more simply, even if you, as a noncustodial parent have made great strides in your life since the entry of the last order, and you have gotten a better job, a better home, remarried, or anything else, if the custodial parent remains in good shape and the best interests of the child will still be served by remaining with them, a modification may not necessarily be granted.How do I get the process started of filing for custody?
Generally speaking, to get started on your custody case there are a couple of determinations you need to make. First and foremost, is which court you can file your petition in. Venue is an important aspect of the petition and one which can get your case thrown out if where you filed is deemed to be an improper venue. In most cases, you can file for custody in Virginia if the Commonwealth is the home state for your child. Home state as defined by legal jargon is established if your child has resided in Virginia for at least the last 6 months consecutively OR if Virginia was the last state that your child resided in for a period of 6 months or longer. Of course, if your child is younger than 6 months old but has resided here from birth, residency is established.
If you've recently moved to Virginia, you generally need to wait for the 6 months to pass before you can file a custody petition. The reason is because your child's prior home state technically has jurisdiction over the case. However, there are exceptions, and we recommend you call a qualified attorney if you believe your case might fall under an exception.
If residency isn't a concern, a custody petition can be filed with the Juvenile and Domestic Relations Court Clerk in the proper county where your child resides. There is an initial filing fee of about $25 dollars with an additional fee assessed for service on the opposing party. The best thing you can do to get the process started, however, is to consult with an attorney. Custody hearings are difficult and they require a lot of preparation and other steps to be taken both pre-trial as well as during and after. A qualified attorney can help you navigate these confusing times.