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Virginia Child Custody

Issues concerning child custody are usually the most emotional of all.  It is common for the parent who has custody to try to alienate the children from the other parent. Some parents who have custody try to exclude the other parent from the children’s lives completely. Sometimes they do so with good reason such as when the other spouse is dangerous or engaged in criminal activity. Other times, child custody is simply a weapon that one parent wields against the other.  Another source of conflict is differences in parenting styles and judgment about what the children should be doing. Perhaps the most difficult issue to face divorced parents is what to do when one wants to move.

These child custody issues seldom come with clean and simple answers. The solutions are often messy and frequently leave one party very dissatisfied. If one parent is reasonable and the other is not, workable compromises may not be possible.

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Child Custody Mistakes to Avoid

A shorter version can be found on the Huffington Post Divorce Page.

Disagreements about child custody can be draining, both emotionally and financially.  They can also arise unexpectedly.   Relying solely on trust without the right legal protections can have devastating consequences.  Consider the following scenario.

Elaine had relied on her husband Todd to take care of the divorce.  Todd chose the cheapest option he could find which was a no fault case that did not address custody of their four year old son, Jeremy.

Elaine and Todd seemed to have a good relationship.  Jeremy lived lived most of the time with Elaine because that’s what she thought was best for him, given that Todd was focused on his new wife and didn’t show that much interest in him.  But she wanted Jeremy to know his dad who had moved two thousand miles away.

So Elaine sent Jeremy to Todd to visit for six weeks during the summer.

The day before she expected to pick Jeremy up at the airport, she got a phone call.  It was Todd calling to say that Jeremy would not be coming home.  The next morning, a process server was at her door to hand her papers from a court in Todd’s state.

Todd was asking the court to order that Jeremy live mostly with him and visit Elaine for two weeks each summer.   Todd and his new wife were claiming Elaine was a terrible parent and that sending Jeremy home would put him in danger.

In actuality, Todd’s new wife just didn’t like seeing money leave their bank account every month to pay child support to Elaine.  She had convinced Todd to keep Jeremy with them so they would be the ones receiving money.

Every court hearing required that Elaine take several days off from work.  She had to pay for air fare, car rental, lodging and meals just to show up.  And, she had to decide on a lawyer without meeting them in person.

At the first hearing, she walked into the courtroom tired from two plane changes, bad food and an allergy attack caused by something in her hotel room.  The lawyer she thought she had hired was not there.  He had sent a junior associate instead.  The judge appointed a local lawyer, who was obviously very friendly with Todd’s attorney, to serve as guardian ad litem for Jeremy and argue for whatever she thought was in his best interest.

The guardian ad litem, a woman in her late twenties, took Jeremy into a room, spoke with him for 15 minutes, then came to talk to Elaine.  The guardian Todd and his wife had told her Elaine was a terrible parent.  She said that Jeremy confirmed some of the details.

When they all went in to see the judge, the guardian ad litem repeated this.  The judge turned to the junior associate who looked at Elaine with a mixture of stage fright and suspicion that she just might be a terrible parent.  When the judge asked him what Elaine’s position was, the associate said only that Elaine would like for Jeremy to come home with her.

Todd’s lawyer and the guardian ad litem argued that Jeremy was safe with Todd and should live with him until the next hearing.  The junior associate, who didn’t know Elaine at all, said nothing in her defense.  The judge granted temporary custody to Todd, ordered Elaine to pay child support,  and set the case for trial in fourth and a half months.

By the time she arrived back home Elaine had spent more than $5,000 between the lawyer’s fees and her travel costs.  Furious with her lawyer, she started looking for a new one.

She eventually spoke with an attorney who told her the first lawyer should have objected to the court hearing the case at all.  She had to pay a new retainer to hire them.  They filed the papers to have the case dismissed.  But between the schedules of the three lawyers, the court’s docket and her need to avoid taking too much time away from work, the decision came six months after the day Jeremy was supposed to have come home.

The judge dismissed the case because, when it was filed, Jeremy had not lived in Todd’s state long enough.   Elaine thought the nightmare was finally over.  She planned  to leave with Jeremy at 1:00 p.m. the next day.

But at 11:00 the next morning she was served with a summons for a new case and Todd refused to let her take Jeremy with her.  Her lawyer told her that he would ask for the new case to be dismissed as well but this time it would be harder to win because Jeremy had now lived in Todd’s state for six months, was enrolled in school there, and seemed to be settling in.  Plus, the same guardian ad litem would be reappointed and would likely continue to side with Todd.

This time the judge ruled the new case could go forward because Jeremy had lived in Todd’s state for the six months before it was filed.  He scheduled the trial for a date five months later.  He ordered that Jeremy should remain with Todd until the trial and, of course, required Elaine to continue paying child support.

Because the guardian ad litem could not fly out to see Elaine’s home, the judge ordered that Elaine have a home study done.  Todd didn’t have to do this because the guardian ad litem lived 20 minutes from his house and could do a home visit.

Elaine paid $2,500 for the home study.  Her legal costs were now over $20,000.  And, although the home study said her home was fine and that she was a good person, the guardian ad litem still thought that Jeremy should live with Todd.

Elaine flew into town the weekend before the trial.  She and her lawyer spent five hours preparing her to testify.  But the witnesses in her city couldn’t be there.  They could not afford to take the time off from work to come, even though she offered to pay their expenses.

Elaine’s lawyer arranged for one of them to testify by phone.  They said she was a great parent, but the judge and the guardian ad litem didn’t seem to pay much attention to what her witness had to say.  Todd presented three live witnesses, including Jeremy’s teacher, to testify that Todd and the step mother were “awesome parents.”

The guardian ad litem admitted that Elaine was not really a terrible parent but told the court that Jeremy was now settled in his new environment and should not be uprooted.  At the end of the trial, the judge ordered that Jeremy continue to live with Todd and gave Elaine three weeks each summer plus Christmas in alternate years.

This horror story is a composite of things I have actually seen in my practice.  My area of Hampton Roads Virginia has lots of interstate child custody cases because the large military bases here cause a constant flow of families into and out of the region.  I have watched many out-of-state parents struggle with the uneven playing field they face.  The details in the story are all too real.

Elaine made two avoidable mistakes that put her at a big disadvantage.

The first was sending Todd without having a custody order in place.  If you have a custody order from your state, as long as you continue to live there, you can insist that your state’s court be the one to decide if any change in the custody arrangement is appropriate.

The second mistake was not immediately pushing for Todd’s case to be handled in her state.  As soon as the papers were served, Elaine should have filed her own custody case in her state’s court.  The lawyer in Todd’s state should have immediately asked the court there to dismiss Todd’s case.   The judges in the two states would have been required to talk and would almost certainly have agreed the case should be in Elaine’s state.

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Todd’s state did not have jurisdiction.  Even when the parent seeking to change custody claims there is an emergency, the state where the child has been living should be the one to decide whether a change is necessary.  Any emergency orders should be strictly limited.

If these steps had been taken, there would have been an excellent chance of forcing Todd to be the one to walk into court still vibrating from a long plane ride.  It would have been his witnesses who were an unknown voice on the phone rather than a living presence in the courtroom.  And Elaine would have been the one with the home-town advantage.

Appealing a Virginia Child Custody Case

If your child custody case was in a Virginia Juvenile and Domestic Relations Court, you can appeal it to the Circuit Court.  This kind of appeal is called “de novo” and it means that the case is tried all over again in the Circuit Court.  The Circuit Court judge is expected to look at the evidence and make their own decision regardless of what the Juvenile Court judge did.  You have to give written notice to the Juvenile Court that you want to appeal and you have to do it within 10 days of the decision.  If you wait longer than that, you will lose your right to appeal.

If your child custody case was in a Virginia Circuit Court, you have the right to appeal, but it will be a different kind of appeal.  You will be in the Court of Appeals and a three – judge panel will review the transcript of your trial and decide if the judge made any errors of law.  You can learn more about how this works by reading my page on Virginia appeals.

Adultery and Child Custody

Some people want to know whether one spouse’s adultery can affect who gets custody of the children in a Virginia divorce.   It is an interesting question.   This is one sphere in which gender bias can make a difference.

Strictly speaking, the fact that either parent is engaging in an affair is not by itself relevant to who should have custody.   However, in my observation, it can make a difference.  Despite the fact that the presumption in favor of mothers having custody has been abolished, the gender assumptions behind it have not gone away.   The mother normally has a significant advantage in a custody battle. However, that same set of gender prejudices can work against the mother if she is engaging in an affair.

Especially if the mother places the children in a situation where they are living with the boyfriend or even having the boyfriend stay overnight, the father will have a good chance of getting custody.  If the wife is living in the marital home but carrying on an affair, she has a risk that at the pendente lite hearing the judge will order her to move out and grant custody to the husband.   Anything that casts the wife in a promiscuous light will hurt her chances to get custody of her children.  Adultery on the part of the husband clearly doesn’t help but it doesn’t seem to  hurt as much as adultery hurts the wife’s chances.

So if there is going to be a custody contest, both parties are better off to cool their passions and wait until the issue is settled before starting a new sexual relationship.

Home Studies in Virginia Child Custody Cases

In child custody cases, the court may order a home study.  A trained social worker goes to the person’s home, evaluates the physical conditions there,  and observes the party’s interactions with the child or children.   In the past, the Department of  Human Services would do home studies in child custody cases.   More recently, such home studies have become rarer because the agencies have other priorities and limited resources.

The judges in custody cases have a very difficult job.  The decisions they make can have a tremendous impact on the lives of the children who come before them.  I can recall one case where the mother’s boyfriend had physically abused her infant child.  The judge later return that child to the mother and the boyfriend again injured the child, this time inflicting permanent brain damage.  The judge was devastated that his decision had this result.   So it is natural that the judges want reassurance that the child or children will be safe where they send them.   Home studies are one way to get that reassurance.   Although the information  was often only marginally helpful to the court, the fact that someone independent had visited the home and checked it out gave the judge some peace of mind.  In most cases, however, the investigations found nothing unusual and just established that the homes of the parties met minimum standards.

Now that DHS home studies are rarer, judges have to rely more on the guardian ad litem to report on the conditions in the home.  The guardian ad litem is a lawyer that the court appoints to represent the interests of the child or children.  They typically make a home visit as part of their investigation.  The judges particularly value the input they receive from the guardians ad litem because they are independent of the parties.

One of the disadvantages of being the out-of-state parent in a contested custody case is that the guardian ad litem cannot easily visit your home.   Sometimes the guardian ad litem gets flown to the out-of-state party’s home but that will be unusual unless the parties have the resources to pay for it.  Instead of a guardian ad litem home visit, the court may require the out-of-state party to have a home study.  This can add a significant expense for the out-of-state parent in a custody case.

In my cases, we try to assemble as much evidence as we can including photos of the home and especially video of the client with their child.  I sometimes have trouble convincing the client to go to the trouble of making videos  But the impact is far better than the best photographs.   Video lets the judge see what the parent and child are like together.   Good photos and video can convince the judge even without  a home study.

Bi-Polar Disorder as a Factor in Virginia Divorce and Child Custody Cases

When I began practicing family law in 1998, one of the first things that I noticed was how often one of the parties suffered from bi-polar disorder.  This mental illness is a mood disorder.  It used to be called manic-depressive disorder because the person would experience periods of mania followed by periods of depression.  That is the classic presentation.

What I have seen in family law cases, however, is what is called Type II bipolar disorder.  This Wikipedia entry for it gives a pretty good description.   What I have seen in my cases is high irritability and extreme impulsiveness.    Sometimes the person has a diagnosis and there are medical records associated with their condition.  Other times, their spouse will recognize the symptoms but there has never been a diagnosis.

The physical and mental health of the parties is listed as a factor in the child custodyspousal support and equitable distribution sections of the Virginia Code.   So if one parent suffers from bi-polar disorder, their condition is relevant to who should have custody of the parties’ children.   A spouse who suffers from the condition could raise it as a reason why they should receive spousal support or an unequal division of the parties’ assets.

Child Custody: Relocation, When One Parent wants to move Away

One of the most wrenching experiences for a divorced parent is losing contact with their children because their former spouse has moved away.  Such situations are one of the hardest cases judges face.  The parent with custody has a right to live their own life.   The parent who would be left behind has a right  to see their children.   And the children have the right to spend time with both of their parents.

In Hampton Roads it is not uncommon for the former wife to start a new marriage with a military spouse and want to move the children to her new husband’s next duty station many miles away.   One parent may have to accept a transfer within their company.   Or one parent may lose their job here and have to relocate because the only work available in their field is in another state.   Lots of situations that are no one’s fault give rise to relocation cases where the parents go to court because they cannot agree on the custody arrangement.

In the past, the courts were fairly liberal in permitting the custodial parent to relocate the children, even when it meant a drastic reduction in visitation for the other parent.  Since 2000, however, the balance has shifted away from the parent who wants to relocate.   One example of the harder road the relocating parent faces, is the tendency to require the relocating parent to pay the cost of transportation for the other parent’s visitation, if the relocation is granted.   And permission to relocate the children can easily be refused.

In deciding a relocation case, the judge must put the interests of the children first.   If the move will benefit them somehow, then that will weigh on the side of allowing the relocation.  If the children are especially close to the parent who will be left behind, that can weigh against permitting the move.

In one case. the Circuit Court judge allowed the mother to relocate the children to another state.  The reason for the move was that her new husband wanted to be closer to his own children from a previous relationship.  The Court of Appeals reversed the decision and sent the case back to the Circuit Court judge.  By then, however, the child had become settled in the new state and the judge concluded it would be detrimental to switch custody to the father.  The father appealed again but this time, the Court of Appeals upheld the Circuit Judge’s decision.

The case is a good example of the importance of time in child custody cases.   Childhood goes by fast.  The slow pace of the legal system works against the parent who is trying to defend their right to spend time with their children.

Several things can help the relocating parent.  One is good records of how much the other parent has seen the children.  If there are lots of blanks in the calendar where the other parent was too busy with other interests to exercise their visitation, that can boost the chances of permission being granted.  Another thing that can help is detailed information about how the children will benefit from the move.  Careful research on the new place to find things that will benefit the children can be helpful.  Some lawyers argue that no benefit to the parent can count, but the Court of Appeals has explicitly recognized that there are situations where a benefit to the parent can flow through to the children.  One of the most common of these is enhanced economic security from change in job.

Since the alternative to allowing the children to move is a change of custody, problems with the other parent’s home can help strengthen the relocating parent’s case.  Conversely, evidence of great parenting and a good home environment can make it harder for the relocating parent to get permission to take the children with them.

Virginia Child Custody: Can Your Child Choose Which Parent they Live With?

One of the most common questions we see is “at what age can a child in Virginia choose which parent they live with?”  Parents who ask this question are often hopeful that at age 12 their child will be allowed to choose to come live with them.

The answer, however, is that under Virginia law, children do not have an absolute right to choose which parent they live with, regardless of how old they are.  Under Virginia Code Section 20-124.3, the judge in a Virginia child custody case is required to consider 9 separate factors in deciding who the child will live with.  You can read the full list.

The child’s preference is number 8 of those 9 factors.  The exact wording of the law is: “The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.”  Applying this language literally, two things must be present before the judge can consider the child’s preference.

The first is, that the preference must be reasonable.  If the child prefers one parent’s home because that parent does not require them to comply with any rules, the judge could conclude the preference is not reasonable and disregard it for that reason.

The other is that the child must possess “reasonable intelligence, understanding, age and experience to express such a preference….”  So, the younger a child, the less weight their preference would be given.  The more the child shows intelligence and understanding, the more weight their views will likely carry.

In the case of teenagers, the judges are mindful that a teenage child who is extremely unhappy in the home of one parent may act out and even run away.  So the views of teenage children are taken seriously.  And, as one judge said in one of my cases, the closer they get to age 18, the more their opinions will matter.  In the absence of a strong reason against it, the views of a 17 year old child will probably be respected.

It’s a disappointing answer for many parents who sincerely believe their child would be much better off living with them.   In evaluating whether to pursue a court-ordered change of custody, parents in this situation should look at the other factors and evaluate whether any of them favor a change of custody.

Virginia Child Custody Cases: Special Situations

High percentage of interstate child custody

Because so many people connected with the military move into and out of the Hampton Roads area, a high percentage of Virginia child custody cases are actually interstate child custody cases. For the most part, the question of whether a child custody case is properly in a Virginia court is straightforward but there are some situations where the answer is not always clear.

Which state has jurisdiction to decide the matter?

The first question that has to be resolved in an interstate child custody case is which state has jurisdiction to decide the matter. That decision is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in all states except Massachusetts. The basic rule under the UCCJEA is that the case must be heard in the child’s “home state.” Virginia has adopted the UCCJEA and it is part of Virginia’s child custody law.

What is “home state”?

The basic definition of “home state” is where the child lived for the six months before the child custody case was filed. If there is a previous court order regarding the child’s custody, the case has to be decided by the courts of the state where the last order was made unless no one lives there any more or that state has relinquished jurisdiction over child custody. The Virginia code section covering interstate child custody  is § 20-146.1

In the case of newborns, the home state is defined as the state “in which the child lived from birth with any of the persons mentioned.” This phrase is unclear. If, for example, the child is 5 months old and lived with a parent in one state from the date of birth to the age of one month then moved to another state, the phrase would appear to make the state of birth the home state, even though the child has actually lived longer in the second state.

In the case of children who have moved within the last six months but prior to the move had lived in one state for six months, then that state would continue to be the home state until the child has lived six months in the new state. Also, periods of temporary absence, such as summer visitation with an out-of-state non-custodial parent are not counted.

Virginia Child Custody case: choose the correct laywer

If you have a Virginia child custody case, and it involves questions concerning where the case should be, it is important to speak with a lawyer who is very familiar with the UCCJEA. Application of the UCCJEA can be complicated and not all lawyers are equally knowledgeable about it.

Interstate Child Custody Cases in Virginia – Emergency Jurisdiction

Virginia child custody cases are subject to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).   If either parent does not live in Virginia, they should consider whether it would be better for them if their Virginia child custody case were moved to their own state.   If, for example, your custody order is from a court in Colorado, and you have lived in Colorado continuously since the order was made you would probably want to ask that any case about child custody or visitation that is filed in a Virginia court be dismissed.   Under the UCCJEA, Colorado has continuing and exclusive jurisdiction.   That means that, unless the other parent  can convince the Colorado court to relinquish its exclusive jurisdiction, the case must be done in Colorado.

A common scenario is that the parent who has custody and lives in another state sends the child to Virginia for a summer visit.  The other parent files a custody case in Virginia, asking that custody be changed to them.   Sometimes this is accompanied by a claim that there is an emergency that requires an immediate determination of child custody in Virginia.  Usually the claim of an emergency is based on an allegation that some kind of abuse has occurred in the other state.

The UCCJEA does permit this kind of emergency jurisdiction.  However, because there is a child custody order from another state, the order must have a time limit.  Virginia Code Section 20-146.15 says:

“If there is a previous child custody determination that is entitled to be enforced under this act, or a child custody proceeding has been commenced in a court of a state having jurisdiction under §§ 20-146.1220-146.13 or § 20-146.14, any order issued by a court of this Commonwealth under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction. The order issued in this Commonwealth remains in effect until an order is obtained from the other state within the period specified or until the period expires.”

In this situation, the out-of-state parent needs to have a Virginia child custody attorney make a motion in the Virginia court to either dismiss the case or put a short time limit on the emergency order.   A common mistake is to rely on a lawyer in the other state to take care of this kind of situation.   You should never rely on a lawyer who is licensed in one state to take care of a matter that is in a court of another state where they do not have a license.   The lawyer in the other state should instead assist you in finding a competent Virginia child custody attorney to help you have the Virginia case dismissed.

What is Contempt in a Virginia Divorce, Support or Custody Case?

When a court orders a person to do something, or to not do something, they are required by law to comply with that order.   If they violate the order by doing the thing they were forbidden to do, or by failing to do what they were ordered to do, they have violated the order and can be held in contempt.

There are two kinds of contempt in Virginia.  The first is what I call “coercive contempt” because the person is held in custody until they do what they were ordered to do.   In law school they tell you that the person “has the keys to the jail in their pocket.”  All they have to do is comply with the order and they can be released.

The best example of this would be if the person had been ordered to sign a deed and refuses to sign.  The court can hold them  in jail until they sign.  Once the signature is on the deed, the person must be released.   The lawyer’s term for this is “civil contempt” but even many lawyers find the terminology confusing so I prefer to call it “coercive” because the purpose is to coerce the person to do something.

The second is what I call “punitive contempt.”  This comes up when the violation cannot be cured.   An example of  this would be when the father is to have the children at Easter and the mother refuses to send them for their visit.  Once Easter has come and gone, the violation has been committed.  The lawyers term for this is “criminal contempt.”   The only thing the court can do is punish the person for having violated the order.

This commonly occurs with visitation violations and violations of protective orders where the party (usually the husband) has some contact with the family that is forbidden by the protective order.   Most cases of criminal contempt in Virginia do not result in the person spending any time in jail.  Far more common is a suspended jail sentence in which the person is sentenced to some period of time, often 30 days, and told that if they violate the order again they will have to do the time.

How to Make a Good Impression on the Judge in a Virginia Divorce, Custody or Support Case

1. Dress Conservatively – You should wear the kind of clothing that you would wear if you were attending the funeral of an important person. Piercings and tattoos that are fine in other situations can hurt the impression you make in court. So leave the pierced jewelry at home and cover the tattoos.

2. Be on Time – This is extremely important.
a. Drive to the court house at least once before the day of your hearing. Be clear on how to get there. Leave early. Allow enough time to get lost, to be stuck in traffic, or have to go home to retrieve something you forgot. If you have a lawyer, agree in advance how long before the hearing time you should get there. Otherwise, be at least 15 minutes early so that you can make it through the metal detector and find your courtroom ahead of schedule.
b. Be sure you have the phone number for the clerk’s office so that if you cannot avoid being late, you can call and let them know you have been delayed through no fault of your own. If you are so late that the hearing has been held without you, get the details of what happened from the clerk’s office so that you can get in front of the judge on another day to try to repair whatever damage may have occurred.

3. Cell Phones – You will not be able to take your cell phone into the court house. Make any calls that you need to before you go in and leave the cell phone in your car.

4. Be Organized and Prepared – If you don’t have a lawyer, decide what you want the judge to do and figure out how to say it with as few words as you can. Don’t be vague. The court system does not handle vagueness well. Be as clear and as brief as you can and still get your point across. When answering questions, do not be evasive. Even if the answer hurts you, state it plainly first and then give your explanation. Try to anticipate what questions you will be asked and have your answers prepared in advance. If you have a lawyer who is not organized, get another lawyer.

5. Be Still – While you are in the courtroom, you must keep your emotions under control. Be sure to have a pen and a legal pad to write on. Make notes of what people are saying. Do not make gestures such as shaking your head or rolling your eyes. This type of thing is very irritating for many judges.

6. Communicating with your Lawyer – While things are happening in the courtroom, your lawyer needs to stay focused on them. Trying to talk to your lawyer while the lawyer is trying to pay attention to what other people are saying will prevent them from doing their job well. Instead, write a short note on your legal pad and put it where the lawyer can see it. The one exception to this is if the lawyer is telling the judge something that is incorrect. Then you must let them know immediately.