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 »
Divorce can be a lengthy process in Virginia. In no-fault cases, Virginia law requires parties to be separated for at least twelve months, or for at least six months with a separation agreement and no minor children, prior to even filing for divorce. And contested or fault-based divorces can take much longer than no-fault cases—sometimes dragging on for years, depending on the jurisdiction and issues involved. However, in many cases the parties have very real needs that must be addressed prior to the final hearing in their divorce. Thankfully, Virginia law allows courts to enter orders granting “pendente lite” (pending final resolution) relief to address those needs.
Virginia law grants the court the authority to issue pendente lite orders in any divorce case. Either or both parties may file a motion for pendente lite relief, either when the case is initially filed or at any time … Read More »
The rules for establishment of paternity vary greatly in Virginia depending on whether a child is born to a married or unmarried mother.
Establishment of Paternity of a Child Born to a Married Mother
A child born to a married woman in Virginia is presumed to be the child of her husband, so long as they were married for the ten months preceding the birth of the child. The husband is the “presumptive father” of the child, with the same responsibility for child support as a “legal father” (one who has been proven to be the father of a child).
However, the presumption of paternity in Virginia is rebuttable. In other words, the husband has the opportunity to prove that he is not the father despite the fact that he was married to the mother at the time of birth.
There are many ways … Read More »
In an unpublished opinion issued on April 21, 2015, the Virginia Court of Appeals upheld the ruling of a trial court that same-sex couples cannot cohabit under Virginia law. The case, Lutrell v. Cucco, might prove to be very important in the evolution of the law regarding same-sex relationships in Virginia.
In Lutrell v. Cucco, Mr. Lutrell (represented by Livesay & Myers, P.C.) filed a motion to terminate his $2,450 per month spousal support payment to his ex-wife Ms. Cucco based upon her cohabitation with another person for more than a year, pursuant to Virginia Code §20-109. That code section states in relevant part that:
[u]pon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing … Read More »
In Virginia, a petition for custody or visitation may be filed by either parent or by any “person with a legitimate interest.” Virginia law defines a person with a legitimate interest broadly to include grandparents, stepparents, former stepparents, blood relatives and family members such as aunts, uncles or adult siblings. Once the court finds that a person seeking custody or visitation qualifies under this definition, then it will consider the best interests of the child in determining whether custody or visitation should be granted, and making any other rulings pertaining to the petition before it.
Any person who has had his or her parental rights terminated by a court, or who seeks access to a child for another who has had his or her rights terminated, voluntarily, involuntarily or by adoption, may not be considered a person with a legitimate interest—regardless of … Read More »
Virginia child or spousal support cases involving military servicemembers present unique and sometimes challenging issues. Servicemembers have a pay structure much different than that of a civilian. Military pay can be any combination of basic pay, benefits, entitlements, allowances, and/or special and incentive pay. With the various types of pay, some taxable, many non-taxable, how does a servicemember know what pay the court will look at to determine spousal or child support? Can the court consider non-taxable pay such as disability pay for spousal support or child support? Are special entitlements such as Post 9-11 GI Bill benefits considered income for purposes of determining support?
Military Pay and Child Support in Virginia
Virginia courts use the same factors in every child support case to determine the amount applicable under the statewide child support guidelines. The court may deviate from “the guidelines amount” … Read More »
The U.S. Supreme Court announced on October 6, 2014 that it was not going to consider appeals from lawmakers in five states, including Virginia, who wished to uphold same-sex marriage bans. The result: same-sex couples now have the right to get married in Virginia.
As with any other couples, same-sex couples should always consider a premarital agreement, more commonly referred to as a prenuptial agreement or “prenup,” prior to entering into marriage. Especially as Virginia divorce law changes to accommodate same-sex couples, the use of a prenup can ensure that parties to a same-sex marriage are protected despite any shifts or ambiguities in the law.
Despite the widely held belief that prenups are only for the rich, a premarital agreement is something that every couple should consider. A prenup protects the premarital assets of one or both parties and allows a couple to contemplate … Read More »
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 … 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 »
“I’m 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 »