One question that often arises in Virginia custody cases is whether a child can simply tell the judge that he or she wants to live with one parent or the other. The answer to that question is: maybe.
Virginia Code § 20-124.3 lists the factors that courts must consider in determining child custody and visitation in Virginia. One factor listed 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.”
The Code does not provide a set minimum age where a child is deemed able to express their preference. Instead, courts are left to decide on a case-by-case basis whether to consider the child’s preference, based on the individual child’s age and maturity level.
And, there is no precise age at which a child’s preference is controlling. § 20-124.3 lists a child’s preference as … Read More »
Advancements in technology have allowed couples to have a child even if they are not able to conceive on their own. One such technology is in vitro fertilization (“IVF”). IVF is the process of extracting eggs from a woman’s body, combining them with sperm in a laboratory and then implanting them in the woman’s uterus. The excess embryos can be frozen and stored for later use. When the couple is ready to have a child, a frozen embryo can then be thawed and implanted in the uterus. This process is known as cryopreservation.
Couples who are undergoing a divorce may find themselves in a contentious legal battle over the disposition of their frozen embryos. For example, if one of the parties fears not being able to have a biological child due to age or other physiological reasons, then that party may want to … Read More »
When making an award of custody or visitation, Virginia courts look at the factors listed in Virginia Code Section 20-124.3 to determine the best interests of the child. One of these factors is whether there has been a history of violence or abusive behavior. This could be a history that has previously been documented by police reports, protective orders, or criminal convictions, but it could also present itself in the form of allegations made against one parent by the other parent during litigation of the custody case.
Allegations of abuse or neglect of a child made against a parent during custody litigation are sometimes referred to as the nuclear bomb of family law. Such allegations can drastically raise emotions and tensions in an already very difficult situation, and can swing the balance in a custody case from one parent to the … Read More »
It is not uncommon for parents facing a custody and visitation dispute to enter it with preconceived notions of what the court will and should consider in deciding their case. Upon sitting down with a family lawyer for their initial consultation, these parents usually start off by listing the facts and circumstances they believe to be most important to the custody or visitation issues involved. Although many of the facts these parents think are important will affect the court’s determination, many others will actually have less of an impact in their case than they might hope for.
In determining the best interests of the child for purposes of determining custody and visitation, Virginia courts are bound to consider the factors listed in Virginia Code Section 20-124.3. Though the factors listed in the statute are not exclusive, they pretty accurately capture the … Read More »
“I want my kids to get the best education possible.” I hear this statement, or some similar variation, from many clients. While this is a worthwhile goal, it becomes much more complicated when the parents are going through a divorce. Very often, the parties share very different opinions of what path would lead to a child receiving the “best” education possible.
After a divorce, parties typically share “legal” custody of their children. Legal custody does not have one definition, and in Virginia the court has the statutory authority to fashion a legal custody decision which it deems to be in the best interests of the child. The judge can order that the parties share equally in decision-making authority for educational matters related to the child, or can give final decision-making authority to one party or the other.
When parties decide to resolve … Read More »
Going through a divorce results in a whirlwind of emotions—everything from extreme sadness and disappointment to elation and acceptance. Regardless of how the marriage ended, or whether the divorce is amicable or contested, people are often unprepared for the immense changes that come from a separation and divorce.
That being said, there are certain steps that you can take to better equip yourself for dealing with the transition from marriage to separation and, ultimately, to divorce. Consider doing each of the following six things at the outset, before seeking a divorce from your spouse in Virginia:
Go to a marriage counselor. This is especially true if you have children with your spouse. There is a reason why you got married in the first place, and you owe it to yourself, your spouse and your kids to see if there is an option other … Read More »
Are you a divorced or unmarried parent? If so, have you ever wondered what would happen to your child in the event you died? If you are a noncustodial parent, have you wondered what would happen if the custodial parent died? Are there third parties with a legitimate interest in the child who would want custody in the event you or the other parent died?
These are all good questions and things that you should be thinking about now.
The Typical Case
Typically, if one parent dies, the other parent will assume custody in total. In the event both parents die, or in the event a single-parent dies (i.e. there exists no other legal parent), then hopefully there exists a valid will that appoints a guardian to the child, as well as an appointed trustee as to the child’s inherited property. In Virginia, a … Read More »
Can You File for Custody If Your Parental Rights Were Terminated in Virginia?
If your parental rights to a child have been terminated, under Virginia law you do not have standing to file a petition for custody of that child. Under Virginia Code Section 20-124.1, a petitioner seeking custody of a child must be a “person with a legitimate interest.” The statute specifically provides that a person with a legitimate interest does not include a party whose parental rights have been terminated by a court order, either voluntarily or involuntarily. However, in 2013, the General Assembly enacted Virginia Code Section 16.1-283.2 to provide a procedure for restoration of parental rights. Once a parent’s parental rights are restored pursuant to that code section, he or she can file a petition for custody.
Who Can Petition for Restoration of Parental Rights?
The statute distinguishes as … Read More »
If you find yourself in the middle of a contested divorce and the stakes are high, you may need more assistance than your attorney can provide. With an eye toward preparing your case for trial or simply aiding in the settlement process, several categories of experts can be utilized to bolster your position and create compelling evidence in your favor.
These experts are typically experienced as trial witnesses, and the best ones come armed with CVs that add weight to their testimony and shield them from withering cross-examination. Experts can also prepare reports for use as evidence in court or as tools to bring the parties closer to settlement.
You should consider whether hiring any of the following six types of experts would be a worthwhile investment of time and money in your ongoing divorce:
Business Evaluator: This expert can be critical in cases … Read More »
In custody cases where a child has lived in multiple states, under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) the initial custody determination will generally be made in the child’s “home state.” If the child has been absent from their home state, the court will look to see what state the child lived in during the prior six months or during the six months immediately preceding the filing for custody.
But what happens when the child has not lived in the United States in the past six months?
Take the hypothetical case of John & Suzy Doe for example. John and Suzy have an 8-year-old son named Joe. Joe was born in England, but moved to Virginia with his parents when he was two years old. After six years in Virginia, Suzy takes Joe and heads back to England. Nine months later, Suzy files for … Read More »