Summertime! It is the time of year where many of our military families are going through their permanent change of station (PCS) moves, and many of our civilian families are moving before the new school year begins.
What does relocation mean for separated or divorced parents who are co-parenting a child in Virginia? The juvenile and domestic relations district courts of Virginia will examine the best interests of the child in each case by applying the statutory factors of Virginia Code Section 20-124.3; but a relocating parent has a significant burden beyond those factors.
Where there is a current court order in place, an impending relocation is always considered a material change in circumstances which allows the court to re-examine the facts of the case.
Unfortunately for the parent hoping to relocate, the current trend of the Virginia Court of Appeals in the … Read More »
When a couple decides to separate and pursue a divorce, there are countless questions and issues that can arise. However, there are also some difficult questions that await the teenage child or children of divorcing parents. Perhaps the most difficult question to answer is: “Who do I want live with after Mom and Dad are divorced?” The answer to this question can go a long way towards determining the final custody and visitation arrangement for that child.
In making a custody or visitation determination, a Virginia court will consider what is in the best interests of the child, according to the factors laid out in Virginia Code Section 20-124.3. One of the most important factors listed in that code section is: “The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience … Read More »
Every parent involved in a child custody dispute is concerned about the kind of custody and visitation arrangement that will result. Regardless of whether the court decides custody or the parents reach an agreement which is then approved by the court, there are two aspects of custody that must be addressed in every case: legal custody and physical custody.
In Virginia, one possible custody option is one parent being awarded sole legal custody and sole physical custody, with a visitation schedule for the other parent. An alternative to that “sole custody” arrangement would be “joint custody.”
Virginia Code Section 20-124.1 defines joint custody as follows:
joint legal custody, where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent;
joint … Read More »
A Family Care Plan (FCP) is a document that certain active duty or reserve servicemembers, and some DOD civilians, are required by the Department of Defense to maintain in order to ensure that their children (and incapacitated parents) are taken care of if they are called away to service.
Any person required by DOD Instruction 1342.19 to maintain a Family Care Plan must do so in a certain amount of time. Other than the requirements with respect to timely filing, the instructions are fairly broad as to what can and should be included in the FCP.
At a minimum, a Family Care Plan allows the military member to designate another party to care for his or her child during any period where the member is unavailable due to military service obligations.
Though the DOD requires this plan of action and files it in each servicemember’s … Read More »
The Difference Between Jurisdiction and Venue
Jurisdiction and venue are two very different legal terms that are often, and wrongly, used interchangeably.
Jurisdiction is the power of a court to adjudicate a case upon the merits and dispose of it as justice may require. Litigants cannot bestow this power on the court by waiver or consent; jurisdiction can only be granted to a court by constitution or legislation. In Virginia, a court has jurisdiction over a family law case if it has (1) jurisdiction over the subject matter, (2) jurisdiction over the person, and (3) jurisdiction to render the specific relief sought. For example, pursuant to Virginia Code Section 20-96, the circuit courts in Virginia have jurisdiction over suits for annulment, divorce, separate maintenance, and for affirming marriages.
In contrast, venue is the place where the power to adjudicate a controversy is exercised, and it can be waived … Read More »
The juvenile and domestic relations district courts (“J&DR courts”) in the Commonwealth of Virginia have jurisdiction over cases to determine child custody and visitation. While this jurisdiction is “concurrent” with the circuit courts (meaning either court can hear such a case), a vast majority of custody disputes begin—and end—in J&DR courts. Parties to custody cases before a J&DR court do retain the automatic right to appeal any decision to the circuit court for a brand new trial, meaning that parents could potentially have to go through a complete custody trial not once, but twice, before being able to move on with their lives.
This reason is one among many that could lead parties to resolve a custody battle through a negotiated agreement. But the last thing a parent wants to face is the other parent backing out of an agreed-upon custody arrangement, … Read More »
“Im Deploying! How does that affect my custodial or visitation rights to my child?”
Deploying is a unique and difficult fact of life for most every military family. For those parents involved in a custody or visitation dispute, deployment can be an even more stressful event, as the deploying parent must also be concerned with arrangements for his or her child during the required absence.
Given that Virginia has the second largest military population in the United States, it is not surprising that in 2008 the Virginia legislature addressed the concerns of deploying parents with a statutory scheme designed to protect the custodial or visitation rights of our men and women in uniform.
The Virginia Military Parents Equal Protection Act, incorporated into Virginia Code Sections 20-124.7 through 20-124.10, defines who is considered to be a deploying parent, including not only active duty but … Read More »
The central question for most parents facing a child custody battle is: “what are my chances at winning custody?” In many cases, the answer to this question depends upon the answer to another question: who is the primary caregiver? Many households are still arranged with one parent being the primary breadwinnner for the family and the other parent being the primary caregiver for the children. In those situations, the latter parent has a decided advantage in winning primary custody. However, Virginia law requires courts to look at the whole picture in deciding custody cases, and not determine custody solely on the primary caregiver factor.
Does Virginia Favor the Primary Caregiver?
Virginia law requires judges to base custody determinations on the best interests of the child, as determined by ten factors stated in Virginia Code Section 20-124.3. Neither parent is automatically favored in these … Read More »
Grandparents may seek custody or visitation of their grandchildren for any number of reasons. Perhaps one or both parents have become incapacitated, incarcerated, or otherwise unfit to have custody. Or perhaps a grandparent feels that a parent is preventing them from maintaining a health relationship with a grandchild. What recourse does a grandparent have in one of these situations? What are a grandparent’s rights to custody and visitation in Virginia?
Grandparent Custody Rights in Virginia
In Troxel v. Granville, 530 U.S. 57, 65 (2000), the U.S. Supreme Court established that parents have an inherent constitutional right in rearing their children. The Court stated that the “interests of parents in the care, custody and control of their children… is perhaps the oldest of the fundamental liberty interests recognized” by the Court. However, this right belongs only to parents—it does not belong to grandparents. … Read More »
In the course of your divorce or custody litigation, you may be required to answer written questions under oath (Interrogatories), provide copies of various documents that are relevant to your case (Requests for Production of Documents), and admit or deny various allegations from your spouse (Requests for Admissions). Along with depositions and subpoenas, this process is collectively referred to as “discovery.” And it’s no fun.
The purpose of discovery is to enable each party to determine the facts of the case and ascertain what evidence may be available for use at trial or to effect a settlement. This prevents a “trial by ambush,” with secret witnesses and exhibits being presented without advanced notice. Responding to discovery requests is not optional, and failure to answer fully and truthfully can result in punishment by the court. Discovery can easily become a boondoggle for … Read More »