Month: June 2018

Virginia Child Custody and Visitation FAQs

After a divorce or the dissolution of a relationship, there are decisions to make regarding custody and visitation of minor children. Who will be the primary caregiver of the child? Will we share both legal and physical custody? What will the visitation rights be? The courts will have their own questions as well when making decisions regarding child custody and visitation. Take a look these FAQs and their answers to better understand the process.

What custody/visitation rights do parents in Virginia have before any court orders have been entered?

In the absence of a court order, both parents have equal rights to the physical custody of their minor children and to make decisions on behalf of their children. The parties could agree on how to handle custody and visitation prior to the court hearing and have their agreement entered as a consent order. Alternatively, either party could file a motion for pendente lite relief and ask the court to enter a temporary order for custody and visitation to remain in effect until the court makes a final determination.

How do judges make decisions about child custody and visitation?

Judges make child custody and visitation decisions based on the child’s best interests. Judges consider a variety of factors they believe to be important to determining the child’s best interests when making a decision.  One important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the other parent remains a strong part of the child’s life.

What factors might be considered when awarding custody and visitation?

Below you’ll find an extensive but not exhaustive list of potential factors. Keep in mind that the court may take into consideration any factors they believe to be relevant to the case and in the best interests of the child.
  • Who is the current primary caregiver
  • Living arrangements for each parent
  • Which parent is better able financially to take care of the child
  • What is the psychological and physical fitness of each parent
  • What is the child’s preference
  • Age and health of each parent
  • Age, health, and gender of the child
  • Religious views
  • How close the parents live to each other
  • How close they live to members of the child’s extended family
  • Which parent lives closest to the child’s school and social circle
  • Length of separation and where the child has been living
  • Any prior abandonment or surrender of custody issues

What are the different types of court ordered custody?

There are many different types of court ordered custody to be aware of:
  • Legal custody: This type of custody includes rights and obligations to make decisions for the child regarding health care, education, religion, and other important matters.
  • Physical custody: As it sounds, physical custody encompasses the rights and obligations to care for the child physically
  • Temporary custody: This type of custody is granted while parents wait for the hearing. Also called Pendente Lite custody, it is made based on the child’s best interests and does not determine the final custody decision.
  • Sole custody: The child has only one residence with one of the parents. Parents may receive sole physical custody, sole legal custody or both.
  • Split custody: When 2 or more children are involved, one child lives with one parent and the other child lives with another parent.
  • Joint legal custody: In this type of custody, both parents can make decisions with the same amount of legal rights and obligations.
  • Shared physical custody: Parents share the physical custody of the child, alternating who cares for the child during set time periods.

How much say does a child have in a custody decision?

A child under the age of 18, who has not been legally emancipated, cannot choose which parent to live with in Virginia. That decision rests with the child’s parents or, if a custody order has been entered, then with the court. If a child is old enough to make a rational decision, the court may take the reasons for their preference into consideration. This scenario is typically the case with older, more mature children.

Can third parties and grandparents be granted custody?

The short answer is yes but rarely. The biological parents of the child bear the presumptive right to custody. Grandparents, other relatives, and other third parties may be considered if both parents are unfit.

I’m the mother. Am I guaranteed custody?

No. In fact, judges and courts are not permitted to give preference to one gender over the other when making a custody or visitation decision. The best interests of the child always come first. Despite the abolishment of legal preference to granting maternal custody, you may still find judges who are biased and prefer to award females custody.

Do I need to go to court to get custody and visitation of my child?

The simple answer is no, but it is best for final decisions of the parties to be reduced to a court order for clarity and compliance.  If you reach an agreement before beginning the proceedings, it will typically make for a smoother and easier process and custody and visitation can be determined through a formal signed agreement. This agreement is then entered into a final order. Parties can retain counsel to negotiate or review agreements and can also use other services, such as mediation. While custody matters are personal and in the best case decided outside a courtroom, legal services are useful in helping the parties reach a final agreement which can be incorporated into an order.

My spouse fails to pay ordered child support.  Can I deny him/her visitation until he/she pays?

No. Other remedies exist to get a non-paying party to comply with paying child support. Withholding visitation is not one of these remedies.

Is a custody or visitation award considered permanent?

No. The Virginia courts retain jurisdiction to review and modify all orders of custody and visitation.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about custody and visitation rights, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Military Divorce in Virginia: What You Need To Know

Active duty military service members, as well as their families, make large sacrifices in service to their country. The long separations, frequent relocations, and the challenges of active duty may stress and take a toll on these marriages.  A Virginia military divorce creates several unique issues as compared to the typical civilian divorce and can be impacted by both state and federal laws. While all divorces, both military and civilian, in the Commonwealth of Virginia, are governed by Virginia law there are benefits and unique circumstances that pertain exclusively to a military divorce.  For that reason, it is important that anyone in a military family seeking a divorce consult with a Virginia divorce attorney with experience handling military divorces.

Residency Requirements:

In Virginia, the grounds for a military divorce are the same as for a civilian divorce. Military divorce filing requirements are as follows:
  • You or your spouse must reside in Virginia
  • You or your spouse must be stationed in Virginia
To establish residency, Virginia requires one or both spouses to live in Virginia for at least six months, with the intention of staying indefinitely, before they can file for divorce. But the Commonwealth makes a specific exception to the “domicile” requirement for those serving in the military.  A service member meets the residency requirement as long as he/she has been stationed in Virginia for at least six months, regardless of their intent to stay.

Default Judgments:

Federal law protects active military members from being held in default when they are on duty and therefore cannot or fail to respond to a divorce action.  These laws were enacted to protect active military from being divorced without knowing it.  In Virginia, an active duty service member must be served in person. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action. Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Virginia court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter.  This is typically the case when the active member is serving in a war.  However, the right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Child support and spousal support:

Military spouses are often forced to delay career opportunities and education to focus on their families, leaving them jobless or under-employed. For this reason, child and spousal support are a major concern for divorcing military families. In Virginia, both child support and spousal support awards may not exceed 60% of a military member’s pay and allowances (housing, hazard pay, bonuses, and non-monetary compensation.) The normal Virginia child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Child custody:

In Virginia, all child custody cases decide what custody arrangement is in the best interest of the child. Military cases often involve many unique circumstances such as long deployments and frequent relocations. In these cases, judges often, but not always, assign primary physical custody to the non-military spouse. Although the Commonwealth of Virginia may have jurisdiction over your divorce case, it does not necessarily have jurisdiction in your child custody matter. These cases must be adjudicated in the state or country the child lives in most of the time. If a child lives abroad, child custody may be left up to the courts in the country in which he/she lives, even if the child is a U.S. citizen.

Marital property:

Virginia is an equitable property state, meaning marital assets are to be distributed fairly between the spouses. Fairly does not necessarily mean 50-50. The federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) which governs how military benefits, including military insurance, retirement, and survivor benefits are calculated and divided upon divorce. The extent to which these benefits can be allocated to ex-spouses depends on the length of the marriage, the length of the service member’s active duty, and the rules for each individual program. If you or your spouse is an active duty or retired military member, it is important to hire an experienced family law attorney that understands the unique issues and circumstances surrounding military divorces.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about military divorce, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

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