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 child from school or daycare without warning. Calling the police will not help the matter as they will inform the caller that they are powerless to help unless and until a court order is entered. This is obviously not the case where a child is in any physical danger but applies in all other circumstances.

An order for pendente lite relief, which is available pursuant to Virginia Code Sections 20-124.2 and 20-103, solves the problem. Such an order will provide a temporary custody and visitation arrangement until a final decision on custody is made by the court at trial or by agreement of the parties. A pendente lite order is just as enforceable as a final order and prevents any back and forth child-snatching. This type of tug-of-war is not in the best interest of the child and will most likely make a judge who hears about it at trial very unhappy.

It is best to get a pendente lite order in place as soon as possible so that custody and visitation is established for the child. This gives the custodial parent peace of mind and allows the child continuing and frequent contact with the non-custodial parent, which is required under Virginia Code Section 20-124.2.

Each jurisdiction in Virginia has different rules and regulations as to whether and/or when they will entertain a Motion for Pendente Lite Relief on child custody and visitation. It is important to retain an attorney who is familiar with the law regarding child custody and visitation and the local rules for your jurisdiction. The custody lawyers at Livesay & Myers are experienced in custody and visitation matters in all jurisdictions of Northern Virginia. Contact us today to schedule a consultation.

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s four offices.


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