Terms to Include in Consent Custody and Visitation Orders
When parents decide to split up, the first thought to enter their minds is often “What is going to happen to the children?” In many cases, one or both parties will file Petitions for Custody and Visitation to protect the interests of their minor children. Depending on which court the petitions are filed in, the parties may not obtain a resolution to their custody and visitation dispute for several months, or in some cases a year or more.
Due to the number of family law cases being filed these days, courts are encouraging parties to mediate their claims and/or enter into “consent orders.” A Consent Custody and Visitation Order is a court order wherein the parties agree on the terms relating to custody and visitation of the minor children. Although some parties just cannot agree on custody and insist on litigating their petitions in court, many parents are able to compromise, enter into a consent order, and avoid a custody hearing.
If you are entering into a consent order on custody and visitation, you should consider including terms in the order addressing each of the following questions:
Who will have custody of the minor children?
This question, of course, must be answered in the order. If it does nothing else, the consent order should clearly determine who will have custody of the minor children. It is also important to spell out whether one party will have “sole custody” or whether the parties will share “joint” custody.
Virginia Code § 20-124.1 defines both sole custody and joint custody in Virginia. Sole custody “means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.” Joint custody is defined as:
(i) 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,
(ii) joint physical custody where both parents share physical and custodial care of the child, or
(iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
The child support provisions of the Virginia Code mention the terms “shared,” “split” and “divided” custody, but those terms are not defined in the Code. Most consent orders either award one party sole custody, or establish joint legal custody with one party being the primary physical custodian. Parties should always attempt to agree upon a custodial arrangement that is in the best interests of the children.
What is the custodial and visitation schedule?
Disagreements often arise as to when one parent’s custodial time begins and ends. To avoid confusion among parents and children, parties should agree on a schedule which answers the following questions:
- Which days of the week will each parent have the children?
- What time does visitation begin and end?
- Who is responsible for picking up and dropping off the children and where is the pick-up and drop-off location?
- What is the custodial schedule for the holidays, summer, winter and spring breaks?
How should the minor children communicate with the non-custodial parent?
Parties should discuss how their children will communicate with one parent while they are with the other parent. Parties may agree to have telephonic and video access to the children at any reasonable times, or may choose to set a regular schedule for telephonic and video calls. There are many applications available for parents to download and use if they agree to allow video calls.
Will each parent have equal access to school, medical, and religious records?
Depending on who has legal and physical custody of the minor children, the parties may agree that one or both parents will have access to the education, medical, school, and religious records of the children.
When and where are the minor children allowed to travel?
Parties may want to address when and where the minor children may travel with each parent. Parties could establish how far the children may travel, whether an itinerary must be provided to the other parent outlining their travel plans, and who will be responsible for keeping the passports for the children.
How will romantic partners be introduced to the children?
In addition to the custodial schedule, parties may want to address how and when romantic partners will be introduced to the minor children, and the sleeping arrangements for romantic partners when the children are present.
Who is responsible for paying child support?
It is well established that both parents in Virginia have a duty to support their children. Depending on the custodial arrangement, one parent may be responsible for paying child support to the other. Pursuant to Virginia Code § 20-124.2:
support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever first occurs. The court may also order that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii); (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support.
Virginia has established statutory child support guidelines, set forth in Virginia Code § 20-108.2, which calculate a monthly support obligation after taking into account the monthly gross incomes of the parties and the number of children for which support is sought. Parties should consider applying the mathematical guidelines, to determine the amount of child support to be paid.
How will the minor children’s medical expenses be paid?
Parents should address who will provide medical, dental, and vision insurance coverage for the children, as well as how any uninsured medical expenses will be paid.
Who will be responsible for extracurricular activities?
As children get older, they may have an interest in participating in extracurricular activities. Parents are encouraged to discuss which extracurricular activities are allowed, the number of extracurricular activities allowed, and how the costs for such activities will be paid.
Who will provide work-related child care for the children?
Parents must decide who will provide any necessary work-related child care for their children, and how the child care costs will be paid and/or divided between the parties. Note that the child support guidelines mentioned above do take into account work-related child care costs.
The questions above are just a few of the issues that parties should consider before entering into a Consent Custody and Visitation Order. Any consent order may be enforced by the courts for years to come, so be sure to consult with an experienced family lawyer before entering into any such order.
The family law attorneys at Livesay & Myers, P.C. have extensive experience with custody and visitation cases. From offices in Arlington, Fairfax, Fredericksburg, Leesburg and Manassas, we represent clients throughout Northern Virginia. Contact us to schedule a consultation today.