Why Do I Need a Child Custody Lawyer in Virginia?
Why Do I Need a Child Custody Lawyer in Virginia?
When considering divorce or even an end to a relationship or a change in living arrangements, many parents start to have concerns about how the change will affect their kids. People are often understandably upset when they ask about child custody laws in Virginia. No one wants to lose custody of their children, and some parents may also have concerns about the other parent’s fitness to care for a child. There are many questions that come up, from shared custody arrangements to visitation, as well as concerns about how custody overlaps with child support payments. With such an important matter, you don’t want to guess or try to figure things out for yourself. The sooner you speak with a qualified child custody attorney, the better prepared you will be to address these concerns and work toward an agreement in the best interest of your child.
Filing for custody in Virginia
Depending on your situation, the Juvenile and Domestic Relations Court (J & DR court) may handle your custody case, or if you are getting a divorce, it may be addressed in the Circuit Court. In most cases, once a divorce has been finalized and custody decided in the Circuit court, the case is sent to the J & DR court to handle any further matters that come up, such as petitions for changes to a custody arrangement, etc. Your attorney can advise you on when and where to file for child custody, as well as the forms you will need to fill out.
If you are seeking a divorce, you may ask for full or partial custody of any children you share with your partner, and they may do the same. While it’s true that some divorces can devolve into bitter fights over custody, in many cases, both parents are committed to reaching a solution that is in the child’s best interest. Ideally, this should be the goal for everyone involved in a divorce case.
If you and your spouse think you can come to a fair agreement about custody on your own, mediation may be an option. In this process, a trained neutral mediator will guide both parties through a discussion of the issues to be worked out—custody, visitation, who spends how much time with the kids, who will primarily make decisions about the child’s health or education, who will the children spend holidays with, etc. It’s important to understand that a mediator does not serve in the role of judge or jury—they aren’t there to hear both sides and decide who is right. Instead, they will try to help you stay on track and communicate better so you can come to an agreement that works for everyone.
In the event that you and your spouse are able to work out a custody agreement through mediation, you will then present it to the judge in your divorce proceedings. The judge will look it over and ask any questions they have to ensure all issues have been addressed. Usually they will then approve the agreement unless they believe there are problems that still need to be worked out.
What if mediation fails? Sometimes, despite everyone’s best efforts, this does happen. If so, the parties will continue on to court to plead their cases for what they think is best in terms of child custody. It will then be up to the judge to decide on an equitable arrangement that is in the child’s best interest.
Child Custody Laws in Virginia for Unmarried Parents
Under Virginia state law, maternity is generally presumed when someone gives birth to a child. Paternity is not automatically established when the parents are unmarried. If both parents agree, they can sign an “Acknowledgement of Paternity” form (AOP) at the hospital, after which the father can sign the birth certificate. If the mother does not agree to this or there is some question of the child’s biological paternity, the father should seek legal advice about how to establish paternity. Typically this is done through a DNA test, which, depending on the situation, may require a court order.
Virginia Child Custody Laws for Fathers
Once paternity is legally established, the father can petition for custody. There are two types of custody under Virginia law, legal and physical. Physical custody refers to where the child lives most of the time, while legal custody refers to who primarily makes decisions for the child (such as where they will go to school, what kind of healthcare they get, etc.). These types of custody may be shared or may be assigned to one parent. With sole physical custody, the child will mostly live with one parent, but may visit the other on weekends or at other times. With sole legal custody, one parent makes most of the decisions for the child. In some cases, the parents may make decisions jointly, or the child may spend roughly equal amounts of time living with both of them, such as each parent having the child on alternating weeks.
As with divorce cases, the court’s primary concern with custody matters between unmarried parents is the same—the best interest of the child. In most situations, this is interpreted to mean that the child should have at least some contact with both parents. Sometimes the judge will decide a child would be better off in the sole physical custody of one parent, but will still assign some amount of visitation to the other parent. In other cases, they may decide on a more equally divided custody agreement.
How Is Custody Decided?
Typically custody decisions are based on many factors, including:
- Both parents’ ages and their mental and physical health. For example, if one parent is physically or mentally unwell to the extent that they are unable to effectively parent a child, it is unlikely the court will award them primary physical custody in Virginia. However, they will likely be allowed visitation so they can remain part of the child’s life.
- The child’s age and mental and physical health.
- Both parents’ history with the child—have both been an active part of the child’s life since birth, etc. For example, the court may give less consideration to a parent who disappeared after the child’s birth and hasn’t seen them in months or years.
- The child’s needs.
- Each parent’s willingness to support the child having a relationship with the other parent. Again, in most cases the court prefers to find a situation where the child can maintain a relationship with both parents.
- The child’s preferences, if the court feels they are old enough and mentally fit to express their preferences.
- Any history of abuse or violence in the last ten years.
Denying Visitation in Virginia
As mentioned above, the court usually prefers for the child to maintain some contact with both parents, except in circumstances where it is not in the child’s best interest to do so. Generally speaking, parents have a right to see their kids, and a custodial parent’s interference with visitation may, in some cases, be grounds for having the custody agreement reviewed and revised.
However, a parent’s right to see their child isn’t absolute. Visitation may be limited, restricted, or suspended in some situations, such as:
- Emotional abuse or harm to the child
- The child’s wishes, if they’re old enough to express them
- Violence or physical endangerment (this may include things like driving drunk with the child in the car, leaving a young child home alone all day, etc.)
- Substance abuse
- Religious issues
- Mental illness
If you feel that your child’s other parent shouldn’t see them any more due to one of the above reasons, the best thing to do is to contact a child custody attorney in Roanoke. Stopping the visitations yourself isn’t recommended, and may give the other parent a reason to request more custody. If you believe your child is in physical danger, your attorney may recommend you make a police report to document the issue before interfering with visitation. They may also be able to request an emergency hearing with a judge to explain why you believe further visitation could harm the child.
Supervised Visitation Guidelines in Virginia
Because the courts prefer to keep both parents in a child’s life if possible, they will sometimes allow supervised visitation in situations where there are concerns about one parent’s ability to care for a child alone. Here are some instances where a judge may decide that supervised visits are the right option:
- If a parent has a history of alcohol or drug problems. For example, let’s say that Jane tells the court she doesn’t trust Bob with their son Todd because of his history of showing up to visits drunk. Bob might admit that yes, he has had a drinking problem in the past. However, he might argue that he has since gone to rehab, committed to attending meetings regularly, and is now sober and able to be an effective parent. The judge might decide that Bob should have supervised visits for some period of time, and if he completes these successfully and remains sober, the judge may later review the case and allow unsupervised visits.
- If there is a history of poor parental judgment. Every parent makes mistakes from time to time, but if there is a particularly egregious instance of poor judgment on one parent’s part, the court may decide supervised visits are necessary. For example, if Mary thought it was a good idea to let her six-year-old drive a golf cart unsupervised and the child was hurt, the court may feel that Mary needs to have supervised visits.
- When there is a serious mental health issue. Mental health difficulties are very common, with about 1 in 5 Americans experiencing some sort of mental illness in a given year. In fact, about half of all adults will experience some sort of mental health issue at some point in their life. In most cases, being these issues do not significantly interfere with visiting one’s child. However, in more severe cases, the court may feel one parent’s mental illness may be significant enough to warrant supervised visits. If the parent gets better with treatment, the judge may reconsider.
- Where there is a history of domestic abuse or anger problems. If one parent has been abusive to someone in their family (whether or not it was the child in question), the judge may feel supervised visits are safer for the child. In some cases, they may also require the parent to take an anger management class or go to therapy.
- Lack of involvement. If one parent has been historically uninvolved or uninterested in the child’s life, the judge may decide to start with supervised visits until they can prove they are committed to parenting.
50/50 Child Custody in Virginia
Often people have questions about 50/50 custody in Virginia. This is one option in a shared physical custody situation, but not the only option. Shared physical custody means that both parents have physical custody of the child at least 90 days of the year. In 50/50 custody, these are evenly divided to about 182.5 days each.
In this situation, the judge will typically set a schedule for the parents to follow. Sometimes they choose week on/week off schedules as these are fairly easy to follow. However, in some cases they don’t work for one or both parents for various reasons. A judge may also set a schedule where one parent has custody during the week throughout the school year, and the other on weekends. In this arrangement, the parent who gets weekends also gets additional weeks during summer or winter breaks from school.
Again, it’s important to understand that if the judge sets a custody schedule, it may not be ideal for you, the other parent, or even your child. It may also affect what school district your child qualifies for, or whether they will always be able to attend extracurricular activities they enjoy. For this reason, you and the other parent may want to try mediation so you can come to an agreement on your own. This will allow you both to have a say in the kind of schedule that will work best for everyone. If you both agree to this schedule, it’s likely the judge will as well.
What about child support—do you still have to pay it if you and your spouse share physical custody 50/50?
This is another common question. Child support is based on a variety of factors, not just who has physical custody of the child more. One important factor is the difference in income. Often if one partner has a significantly higher income, they will be expected to pay child support even in a 50/50 custody situation. This is to ensure the child has the same standard of living in both homes.
If you have questions about child custody cases in Roanoke, Virginia or the surrounding area, please contact a child custody attorney at Lugar Law right away for a consultation.