People undergoing the process of separation and divorce face many major, life-changing events all at one time. First and foremost in the minds of most parents in this situation is the issue of child custody. The initial question on the minds of many is: “Can I get sole custody of my kids?” While many parents are inclined to seek sole custody of their kids, very few are familiar with what the term “sole custody” actually means, and the difficulty that comes with trying to win sole custody of children in Virginia.
In Virginia, there are two types of custody: legal and physical. Legal custody is the right to make decisions for your children, including major decisions such as healthcare, education, and religious upbringing. Physical custody is where the children live. Visitation is a subset of physical custody, and can be generally … Read More »
It is not uncommon for people undergoing divorce to approach their attorneys with a laundry list of terms regarding their children that they would like included in their separation agreement, or for people who already divorced to approach attorneys with child-related terms of an existing separation agreement which they need enforced. What many people are surprised to hear is that some of those terms which they would like included, or some of the terms that may already be in their agreement, are actually unenforceable under Virginia law.
The first thing to understand in this area is that provisions in agreements regarding child custody, visitation and child support are always modifiable based upon a material change in circumstances. Always! So, any provision in an agreement which indefinitely prohibits the modification of custody, visitation or child support would be unenforceable.
Secondly, there are plenty of … Read More »
A written agreement between parents or a court order regarding custody and visitation are the most common methods by which custody and visitation are determined between parents who are no longer together. However, in the event that one parent will be absent from the country, a power of attorney may be an appropriate means of giving someone who is not a custodian or guardian of your children the ability to act on your behalf during their absence.
Virginia law provides for children’s enrollment in school when living with relatives who are not their parents, by use of special “kinship care arrangements.”
Virginia also allows military families to have a power of attorney regarding the care of minor children, by recognizing the military power of attorney instrument provided in 10 U.S.C. § 1044(b). See Virginia Code § 64.2-1604 and the Interstate Compact on … Read More »
In Virginia, courts are required to base custody and visitation determinations on the best interests of the child. The specific factors courts should consider in determining what is in a child’s best interests are set forth in Virginia Code § 20-124.3. One of these factors is:
“[t]he propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.”
This factor generally appears in custody and visitation cases where one or both parents is speaking negatively about the other parent around the child, or overtly barring access to the child without cause. (Speaking negatively about the other parent “around the child” can include denigration of the other parent on social media.)
This factor also comes into play when the primary … Read More »
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 »