Category:Custody


Parental Kidnapping in Virginia

Posted on December 7th, 2012, by Livesay & Myers, P.C. in Custody, Family Law. 1 Comment

Under Virginia law, is it possible for a parent to kidnap his or her own kid? People in general seem to understand that kidnapping or childnapping involves the “taking” of a child. However, the underlying presumption many make is that the “taking” is of someone else’s child. How could it ever be illegal for a parent to take custody of their own child?

Virginia law is clear: anyone, even parents, can be convicted of kidnapping their children. However, the consequences are much worse if the child is removed from the Commonwealth of Virginia.

Virginia Code § 18.2-47 states that any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes another person with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person, … Read More »


Five Reasons To Avoid Litigating, If You Can

Posted on November 28th, 2012, by Matthew Smith in Custody, Divorce, Family Law. Comments Off on Five Reasons To Avoid Litigating, If You Can

Many clients come to me expecting the worst from their spouses during the divorce process. They talk about how their husbands or wives will never settle, how they’re out for blood, and how they’ll stop at nothing to make the process as miserable as possible for everyone involved.

As a result of this fear, whether founded or not, many people want to begin their divorce case by taking overly aggressive and unnecessary actions that tend to diminish the possibility of settlement. I think part of an attorney’s job is to dissuade clients from embarking down that road unless it’s necessary to do so.

That’s not to say that anyone should roll over. There are clearly cases where the parties are playing a zero-sum game, and there are certainly parties to a divorce (and even family lawyers, unfortunately) who have no interest in … Read More »


Understanding What Your Family Lawyer Can – And Can’t – Do For You

Posted on October 1st, 2012, by Matthew Smith in Custody, Divorce, Family Law. Comments Off on Understanding What Your Family Lawyer Can – And Can’t – Do For You

When potential clients come in to meet with me, they’re often experiencing a crisis in their lives unlike any other. Many people have expectations about the legal system and their lawyer’s role in healing the wounds of their divorce or custody dispute.

So what can the divorce or custody process do for you and what can’t it do? As you get started, where should your focus be?

Let’s begin with what the judicial process generally can’t do. Unfortunately, if you have been suffering through a difficult time, the legal process will never make you whole again. The judge won’t declare your husband to be a bad person or force a public apology from him. Typically, you will not get the opportunity to convince the judge and your wife’s attorney that you are in a morally superior position. We can’t force your husband … Read More »


Admissibility Of Parent Mental Health Records In Child Custody Cases

Posted on September 24th, 2012, by James Livesay in Custody, Family Law. Comments Off on Admissibility Of Parent Mental Health Records In Child Custody Cases

There is an ongoing debate in Virginia as to whether a parent’s mental health records should be admissible in custody and visitation cases. Prior to July 2008, Virginia Code Section 20-124.3:1 specifically provided that the mental health care records concerning a parent in a custody and visitation case are confidential. In 2008, that provision was repealed, and we are now in a period in which a parent will routinely allege that the other parent is practically insane and therefore an unfit parent, and will attempt to prove it by the introduction of what were once confidential medical records.

The question of the admissibility of a parent’s mental health care records features a tug-of-war between a person’s right to confidentiality and the court’s duty to act in the best interest of the child. The question is complicated by Virginia Code Section 8.01-399, which acknowledges that … Read More »


The Importance Of Co-Parenting: Lessons From A Celebrity Custody Battle

Posted on September 10th, 2012, by James Livesay in Custody, Family Law. Comments Off on The Importance Of Co-Parenting: Lessons From A Celebrity Custody Battle

Celebrity entertainment outlets often cover the legal skirmishes of Hollywood’s rich and famous. In addition to their entertainment value, these stories occasionally illustrate lessons applicable to daily life. Recently, an article on People.com detailed the protracted custody battle between actress Kelly Rutherford and her ex-husband, Daniel Giersch. The article alleges that over the course of their three-year case, Ms. Rutherford failed to notify Mr. Giersch of the birth of their daughter and accused him in court documents of dealing drugs and weapons internationally.

However, her allegations may have backfired on Ms. Rutherford, as they apparently led to the revocation of Mr. Giersch’s visa, which ultimately caused the court to decide that it was in the children’s best interest to remain in Monaco, where both parents could have regular contact with them. This was understandably upsetting to Ms. Rutherford, as she is a cast member … Read More »


Grandparent Visitation Rights In Virginia

Posted on August 18th, 2012, by James Livesay in Custody, Family Law. 2 comments

For the past few years, you have helped raise your ten-year-old grandson. Since you have taken this active role in your grandson’s life, he has thrived. Recently, your requests for visitation with your grandson have gone ignored, and you have concern as to how your detachment from your grandson will affect him. What legal avenue could you possibly take that would lead back to you being able to spend time with your grandson?

One option available to grandparents is to file a petition for visitation with the court. Although Virginia has made it clear that the courts are to consider the parent-child relationship primary and to not interfere with a parent’s right to raise a child as the parent sees fit, whenever the state has a compelling interest, such as the protection of the welfare of the child, the court may … Read More »


Child Custody And Deploying Military Parents In Virginia

Posted on July 18th, 2012, by Livesay & Myers, P.C. in Custody, Family Law. Comments Off on Child Custody And Deploying Military Parents In Virginia

Today the Uniform Law Commission is meeting to consider final approval of proposed custody rules for military servicemembers. Their proposal—the Uniform Deployed Parents Custody and Visitation Act (UDPCVA)—seeks to address many of the important issues that arise when a military parent deploys, and to resolve the wide variety of laws among the different states.

A servicemember parent will often create a Family Care Plan (FCP) to become effective upon their deployment, but in cases where a valid court order exists the FCP and order often come in conflict. The non-deploying parent is not required to sign off on an FCP, and many times the wishes of the deploying servicemember as set out in the FCP are overruled by the court order. Moreover, custody orders very rarely contain express provisions providing for a potential delegation of parental rights and responsibilities to a … Read More »


The Grey Area of Child Custody and Visitation Before a Court Order is Entered

Posted on April 10th, 2012, by James Livesay in Custody, Divorce, Family Law. 3 comments

The status of child custody, when the parents of a child separate, is unsettled until an order for child custody is entered by a court. Much discussion, during consultations for divorce and/or child custody, focuses on which parent has custody rights. The answer is both parents do, but then again, neither parent does. It sounds complicated but is actually very straightforward.

Until a court in the county where the child resides grants an order for custody, both parents have the ability to “assume” custody of the child at will. What this boils down to is that either parent can physically remove the child from the other and assert that the child will remain with them.

Unfortunately, I have seen cases where the child is residing with one parent and the other parent refuses to return the child after visitation or after picking up the … Read More »


Modification of Custody Orders in Virginia

Posted on January 14th, 2011, by James Livesay in Custody, Family Law. Comments Off on Modification of Custody Orders in Virginia

In an ideal world, after the final custody order is entered, all the animosity melts away and families transition seamlessly into their custody arrangement. Unfortunately, this isn’t always the case. As children grow, parties remarry, and priorities change, you may find that you or your children are no longer happy with your custody order.

Virginia Code § 20-108 requires the party petitioning the court for modification of a custody order to prove that (1) there has been a material change of circumstances since the entry of the last order, and (2) it is in the best interest of the children to modify custody.

The change of circumstances may be either positive or negative. A positive change could be a parent’s remarriage or getting a new job with either a higher salary or more flexible work schedule. A negative change could be a … Read More »


Social Networking and Electronic Communications in Custody and Divorce Cases

Posted on January 12th, 2011, by James Livesay in Custody, Divorce, Family Law. Comments Off on Social Networking and Electronic Communications in Custody and Divorce Cases

Technology is a wonderful tool to make our lives easier and help us connect with friends across the world, through social networking sites such as Facebook, Myspace or LinkedIn. Technology has allowed instant communication through texting, instant messaging and e-mail. While these technological advances may make our social lives more enjoyable, they can lead to hidden perils during a divorce or custody case.

Social Networking Sites

Posting on a social networking site may seem like harmless fun, but during a divorce or custody case these postings can easily move from the computer to the courtroom. Your time in front of a Judge is limited, and the last thing you want to do is waste time defending the angry wall post you wrote at 2 a.m. or those pictures of you blowing off steam at a friend’s party, during your divorce or custody … Read More »


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