How Will the New Marijuana Laws Impact Custody Cases?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

In 2021 Virginia voted to move up the legalization of recreational use of marijuana to July 01, 2021. As with most new laws there are a lot of questions about how this will impact our day to day lives and, for those with ongoing custody and visitation cases, how this will impact those cases.

Frequently in custody and visitation cases parents will make allegations against each other regarding drug use, alcohol abuse, and several other bad acts. Most drug abuse allegations concern marijuana usage; and, in the past, the court’s response to these allegations was to order one party to undergo a drug test or to order that parents cannot use any illicit drugs during their custodial time. With the legalization of marijuana imminent, how courts address these allegations will be changing. Since recreational marijuana use has never been legal in Virginia before, there is no controlling authority that we can rely on at this stage. Instead, attorneys will likely look to the court’s treatment of alcohol use in similar circumstances.

First, the court will likely look to if the usage negatively impacts normal responsibilities. For example, have there been convictions for driving while under the influence, loss of a job, extraordinary spending on marijuana, or some other factor that has a serious negative impact.

Second, the court will look to see if the usage impacts the care of the children. As with alcohol, the court will likely look to instances when one parent was unable to properly care for the children due to marijuana usage. For example, if a parent was unable to pick the children up from school or an event, unable to transport the children in an instance of a medical emergency, or some accident occurring that should have been avoided.

Finally, the court will look at any instances of the parent driving while intoxicated with the children in the car. This is a big factor for the court and can result in pretty extreme action from the court if the other parent is able to prove that the children were put in harm’s way.

These are just few examples of what the court will look at when allegations of marijuana abuse are presented. It is very likely that the court will hear less allegations of marijuana abuse after it is fully legalized. However, just like with alcohol use, the court may restrict a parent from using marijuana during their custodial time and may order treatment or counseling if use is shown to be excessive or harmful.

Substance abuse is just one factor of what the court will look at when deciding what is in the best interest of the children pursuant to Virginia Code 20-124.3. When going through any custody or visitation case is important to understand all of your rights. The experienced family law attorneys at Melone Hatley, P.C. can help you navigate your rights and obligations during your custody and visitation case. Contact our office to schedule a free initial phone consultation today.

What is “Discovery”?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

In any family law case, you have the right to certain information from the other party. Whether it’s a divorce, custody, or child support case, your attorney may talk to you about doing “discovery.”

The most common forms of discovery are interrogatories and requests for production of documents. Interrogatories are written questions to the other side, asking for information such as their employment schedule, custodial obligations, housing arrangement, expenses, and other details that may be important to the case. Requests for production of documents are requests for the other side to produce certain documentation, which can include paystubs, tax returns, copies of text messages, or other items that may be necessary exhibits for trial.

No matter what type of case you are going through, discovery can be the “make or break” piece of the puzzle. If you don’t object properly to overreaching, invasive, or unnecessary questions, you will be obligated to answer them fully. If the information requested is not in your possession, you may be obligated to get it. The responses you provide are sworn to and can be used to challenge your testimony at trial. If you haven’t provided something requested in discovery, you can be subject to sanctions or penalties for failure to comply with the request, and you can be prejudiced or sanctioned at trial and even prevented from introducing evidence as part of your case.

Given the severe penalties at stake, your case can be won or lost well in advance of trial depending on discovery. In addition to the ordinary interrogatories or requests for production, the other side can request admissions from you, asking that you “admit or deny” certain elements of the case. If you miss the deadline to provide responses, the court will deem these requests to be “admitted,” severely prejudicing your case.

In cases where discovery has not been authorized or where it’s been limited, attorneys can use subpoenas or subpoenas duces tecum to request documents that may be necessary to the case. Attorneys can send requests to banks, businesses, or individuals, requiring them to provide documents within a certain time frame. Again, if you do not file a motion to quash the subpoena within the necessary timeframe, you may end up providing more information to the other side than they are entitled to.

No matter what type of case you are going through, it’s essential that you understand and follow the rules and procedures of the court. If you have been served with discovery requests, you have a certain time limit to respond. Missing that deadline can mean penalties to your case and even attorney’s fees for the other side for your noncompliance.

If you have questions about the discovery process or your case, contact one of our experienced attorneys at Melone Hatley to help you through this process. Contact us for a phone consultation today.

What is “status quo” in custody cases?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

Anyone that has gone through a custody or visitation battle in court, or is about to, may have heard the term “status quo.” Status quo, in terms of custody and visitation, means the schedule the parties have been following prior to court. The court will consider what’s normal for the children and parents in setting a visitation schedule. So, if one parent leaves the home without the children, it is unlikely that parent will ultimately get primary physical custody.

Statutory Basis

The courts in Virginia have gone to great lengths to try and dispel the idea that status quo is a factor in determining custody and visitation. In fact, Virginia Code 20-124.3—the best interest of the child standard – does not mention status quo directly. However, it is disingenuous for the courts to claim that status quo does not play a part when so many elements of the Virginia Code 20-124.3 ultimately rely on the pattern the parties have been following prior to litigation.

In order to fully understand how status quo impacts what the court considers to be in the best interest of the child when determining custody and visitation cases, it is important to review all ten factors of Virginia 20-124.3; but the following weigh the most heavily:

 

  • Factor (3): Which deals with the relationship existing between each parent and child strongly relies on status quo. If one parent left the home, and other parent has been taking care of the daily needs of the child; that parent is going to have a different relationship than the parent that left the home. The court will strongly favor keeping the child with the parent who has been handling the day-to-day needs of the child;
  • Factor (5): The role that each parent has played and will play in the future again heavily relies on status quo. In the example where one parent leaves the home, the court is going to consider that parent’s role to have been minimal and, for continuity, work to give the child the same contact with that parent.
  • Factor (7): The ability of each parent to maintain a close relationship with the child also relies heavily on status quo. The court will consider that the parent who does most of the day-to-day care has the closest relationship with the child.

Separation Makes Time-sharing Difficult

Any parent who is going through a separation understands the harsh reality that equally splitting time with a child is difficult; especially when the parents are not getting along. In addition to the relationship factors, there are also financial issues that arise—it is not always possible for the parents to separate and then live close enough to exercise an equal custody arrangement. Transferring the children back and forth during the week may not be possible given the children’s school and extracurricular programs and childcare availability.

Parental Alienation Issues

The most frustrating situation is when one parent takes the children and leaves and then blocks the other parent from having time with the children. In these instances, even though the other parent is blocking access to the children, which would be relevant to Virginia 20-124.3(6), the court may still side with the offending parent based on the status quo. It is important that if you are being alienated from your child that you act quickly and get your custody and visitation case before the court before a new pattern or status quo is established.

Contact Melone Hatley, P.C.

The custody and visitation attorneys at Melone Hatley, P.C. have the experience necessary to help navigate you through all of these situations and ensure the best possible outcome for your matter. For more information about our family law practice, 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. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

What Can I Do About a False CPS Report?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

In contested family law matters, CPS often gets involved where there are concerns of abuse, neglect, or mistreatment of children. CPS takes reports from family members, as well as other members of the community anonymously and for any reason. Most frequently reports are made by family members, neighbors, friends, educators, and even acquaintances. Unfortunately the majority of cases turn out to be the result of misinterpretation, or, outright fraud.

When parents are going through a family law dispute, it’s difficult to know what may be occurring in the other household. Young children may make statements that lead a parent to believe some abuse may be occurring, or there may be other sources of information such as mutual friends and extended relatives. However, some parents attempt to utilize CPS in order to obtain sole custody based on false allegations of abuse or mistreatment of a child. In those situations, there are remedies available to those who have been falsely accused.

What is the Role of CPS in Family Law Cases?

CPS workers investigate complaints regarding abuse, neglect, or other mistreatment of children. Generally, caseworkers will do their best to determine whether or not a child is in any risk of harm before making a determination and report. If there is an immediate risk of harm, CPS will ask the court to intervene to place the child somewhere safe on a temporary basis. Investigations can result in allegations being determined to be “founded” or “unfounded.”  If allegations are “founded” CPS will frequently ask the parties to enact a safety plan or will take further action in the Court if necessary.

CPS reports and testimony from caseworkers may be involved in a future custody hearing, so caseworkers will take detailed notes, pictures, and will clearly state their opinion regarding their investigation in the report.

If you are being investigated by CPS, you should do your best to remain calm and polite to the caseworker. Refusal to provide information can result in action being taken against you in the future. If you have questions or concerns about the investigation, you will want to contact your attorney right away. Remember, the CPS caseworker is there to represent the interests of the child and make a report; they are not able to provide you with any legal advice or representation. You have the right to have your attorney present with you during interviews with CPS, although it is not required.

What happens if allegations are “unfounded”?

Unfortunately, most allegations are determined to be unfounded.  If your case is determined to be unfounded, you have the right to petition CPS to provide information on the individual who made the report against you. In Virginia, knowingly providing a false report of child abuse or neglect is a Class 1 Misdemeanor, meaning the accuser could face up to 12 months in jail and pay up to $2,500 in fines.  A second offense increases to a Class 6 felony if convicted. If a conviction is made for a false report, you may request to have CPS destroy their records of the investigation.

About Melone Hatley

Melone Hatley is a general practice law firm with offices in Reston and Virginia Beach. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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 CPS investigations and our family law practice, 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. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

 

 

The Other Parent Won’t Let Me See My Child; What Can I Do?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

Withholding of a child from visitation from their other parent can be a serious factor for the court to consider in any custody or visitation case. In some situations, the court will intervene by either changing custody completely, or by ordering re-unification therapy for the child and the other parent. You have different remedies available depending on the procedural status of your case and relationship with the other parent.

During a Divorce

If you and your spouse have initiated a divorce case in the Circuit Court, you can request a temporary hearing on custody and visitation, known as a pendente litehearing. Any orders made at this stage are meant to be temporary, and can be modified in the future if there are any material changes in circumstances. Ordinarily, a pendente liteorder will remain in effect until the parties go to trial and get a final determination. However, if one party refuses to comply with the pendente liteorder and withholds the child from the other parent, the court may modify its temporary order.

Decisions made during a pendente litehearing follow the same standard for custody and visitation as a full trial. The court will consider the factors of Virginia Code Section 20-124.3 in making its determination. One of the most important factors for many courts is found at subsection (6) and states the court will consider: “®he propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.” While this is only one of the factors listed, many judges weight it more heavily than other considerations such as the role each parent has played in the child’s upbringing.

During a Custody & Visitation Case

For parties that are not married, they can file for temporary custody and visitation with the Juvenile and Domestic Relations District Court. Once a custody and visitation petition has been filed, either party may request a temporary hearing while the case is pending. Again, any order made is usually in effect until the final trial. The court will follow the same standards of Virginia Code Section 20-124.3 in making a temporary determination.

Once there is a final order in the Juvenile and Domestic Relations Court, the parties each have the option to note an appeal to the Circuit Court within 10 days. In the appeal, the court will hold a new trial and follow the same standard.

After Your Case

Once you have a final decision from either the Juvenile or Circuit Court, you have the ability to enforce it against the other parent through the court as well as through law enforcement. If the other parent refuses to let you have your scheduled visitation, you can file a petition for a Show Cause, requesting the court hold the other parent in contempt for not complying with the order. In a Show Cause, the court can award sanctions, jail time, and attorney’s fees against a noncompliant party.

Once you have a court order you also have the option to request law enforcement assistance if the other parent refuses to turn over the child for your scheduled visitation. Law enforcement is able to take action based on valid court orders only and cannot intervene if there is no order in place. If the noncompliance is severe enough, the other parent can face charges for parental kidnapping as well.

If the other parent continually refuses to allow scheduled visitation or interferes in your custodial time, you have the option to request a modification of your current court order. A modification case requires a showing that a material change in circumstances has occurred since entry of the last order. A parent’s withholding of a child or alienation of a child can be enough to demonstrate such a material change.

About Melone Hatley

Melone Hatley is a general practice law firm with offices in Reston and Virginia Beach. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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 our parental alienation and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

 

 

 

What is Family Law?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

What is Family Law?

Our firm focuses primarily on the practice areas of family law and estate planning, but often non-lawyers will ask “what is ‘family law’ anyway?” It encompasses a broad spectrum of practice areas from divorce to custody and everything in between.

Divorce

The most frequent type of family law case is divorce, in which married people seek to divide assets and liabilities and determine custody, visitation, and support of minor children. Some cases are contested, meaning the case has to be heard and decided by a judge, while others are uncontested, meaning the parties are able to work out an agreement without court intervention.

If a case is uncontested, it can be finalized relatively quickly once the separation period requirement is met. Parties with no minor children who sign a separation agreement must be separated for 6 months prior to filing for divorce. Parties with minor children must be separated for 1 year prior to filing for divorce.

Annulments

In very rare situations, married couples may be eligible for an annulment rather than a divorce. In order to be eligible for an annulment, a spouse must be able to prove one of the following legal grounds: bigamy, incest, incompetence, fraud, impotence, underage, felony, duress, sham marriage, or pregnancy by another person within 10 months of the marriage. Because the grounds are so limited, most marriages are terminated by divorce rather than annulment.

Child Custody & Visitation

In cases where parties have children together but are not married, they can petition the court to set custody and visitation arrangements for the minor children. Custody determinations will include legal custody, meaning who can make legal decisions regarding the child, as well as physical custody, meaning where the child lives the majority of the time. Custody and visitation cases can be modified in the future when there is a material change in circumstances.

A visitation matter will determine where, when, and for how long the child spends time with each parent. In most circumstances where parents live close to one another, the child will spend time with each parent during the week. If parents live further apart, the court may order more visitation time be spent during breaks from school rather than on a weekly basis. Part of the visitation order should include how transportation will be accommodated and who is responsible for payment of any travel costs.

Child Support

Child support can be set in a divorce matter, or in a case where the parties were not married, it can be determined in the juvenile and domestic relations court as a separate matter. Even if parties have an agreement regarding child support, the court will usually apply the statutory guidelines for support.

In some cases, there is a good reason to deviate from the guideline amount of child support. If a parent is voluntarily unemployed or underemployed, for example, the court may order a higher amount of support than would be paid under the guidelines. If one parent moves far away and visitation will require air travel, the court can consider the costs of accommodating visitation into a deviation from the support guidelines.

Paternity

If a child’s parentage is in question or has not yet been determined, the court will order genetic testing to determine paternity. Opening a paternity matter enables the parties to petition for other related matters, such as custody, visitation, and child support. Once paternity is determined, both parents have an equal right to the child unless and until the court makes a custody order.

Spousal Support or Separate Maintenance

In some situations, parties may not have a ground for divorce yet, but are in need of financial support. They can petition for spousal support through the juvenile court, or make a suit for separate maintenance in the circuit court. Both of these matters can be determined without a divorce case and without making any other determination regarding division of the parties’ assets or liabilities.

Some spouses prefer to avoid filing for divorce for religious reasons. In such a situation, they can still petition and enforce a court order for support from their spouse.

Prenuptial Agreements

Parties can make agreements prior to marriage that determine the legal rights between them. These agreements can include terms for how the parties may pursue a divorce, what remedies may be sought, and limitations on financial awards. If a spouse has substantial pre-marital assets, a separate business interest, or other property, it’s advisable to have a prenuptial agreement in place. A prenuptial agreement can also modify each spouse’s right to inherit from the other and will often be drafted alongside other estate planning documents.

About Melone Hatley, P.C.

Melone Hatley, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. 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 estate planning, contact our Reston office today at 703.995.9900 or Virginia Beach at 757.296.0580 or visit our website: www.MeloneLawPC.com.

Divorce During COVID-19

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

Divorce During COVID

For couples that were facing separation and divorce before the stay-at-home order, Executive Order 55 added complication to the separation process. In order for couples to divorce based on separation in Virginia, they must have been living separate and apart for 6 months or 1 year before filing, depending if they have minor children or not.

Separation

In Virginia, separation requires physical separation and can include time spent under the same roof as long as the parties are truly living separate and apart. It can be difficult to demonstrate separation to the court when parties are still living in the same home and acting as a family unit. Some factors that may help to show separation include separating financially, purchasing separate groceries, and living in separate areas of the home. During the current stay-at-home order, it may be difficult for couples to set strong boundaries in place to initiate or continue separation.

The Divorce Process

Many divorce cases can still move forward so long as they are completely uncontested, meaning the parties have reached an agreement regarding custody, visitation, support, asset division, debt division, and any other necessary terms from the relationship. It can be difficult for couples to unwind their shared interests in an equitable way on their own when there is so much emotion involved.

For those that cannot reach an agreement, the next option is to file a divorce case and request the court make a temporary order while their case is awaiting trial. During the current court closure, these motions will not be heard unless there is an emergency involved. A party can still file their divorce and temporary motion, but they will not be able to get a ruling from the court for several weeks once they are able to set a hearing.

This slowdown in the process can create a financial or other hardship for couples facing divorce. Deciding who is responsible for payment of joint expenses, setting temporary child or spousal support, and a temporary custody schedule is already complicated enough without adding limited court availability.

Alternative Dispute Resolution

For those that may be close to reaching an agreement, or that just need some guidance in the process, mediation may be an option to move their case forward. Mediation is the process of negotiating a case with the assistance of a neutral third party, called a mediator. Most mediators are retired judges or attorneys who have decades of experience. Each party usually has their own representation and their own attorney during the mediation process. Mediators all have their own process, but most frequently the parties all meet together before splitting into separate rooms with the mediator traveling back and forth making offers.

The mediator cannot offer either party legal advice, which is why bringing your own attorney can make all the difference in ensuring a fair outcome. The mediator’s job is to find a middle ground between each party’s position and facilitate the negotiations to a meeting point. Most mediators take one issue at a time and work to resolve each one, creating a full written agreement at the end of the session.

Mediation can have a number of benefits over litigation so long as both parties are willing to participate in the process. Some benefits of mediation include:

  1. Creative Solutions: The courts are limited in following judicial precedence to make orders. In mediation, couples can reach more creative, flexible, agreements that would not be ordered by a court.
  2. Save Embarrassment: Any matter in the Circuit Court is public record. That means everything in the court file and everything said during a hearing could be overheard or used for other reasons in the future. For cases involving sensitive issues, parties may benefit from keeping the process private through mediation.
  3. Save Time and Cost: Parties that reach an agreement in mediation can move forward with their case once they have a signed agreement. The court will still process uncontested divorces. An uncontested divorce will be substantially less expensive than a contested case to finalize as well.

If you are facing separation and divorce during COVID-19, it may be best to seek legal counsel now to discuss your options in detail before taking any action. You want to ensure your rights are protected and your case will be successful once it can move forward.

About Melone Hatley

Melone Hatley is a family and estate firm serving Virginia Beach and Northern Virginia. 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 estate planning, contact our Reston office today at 703.995.9900 or Virginia Beach at 757.296.0580 or visit our website: www.MeloneLawPC.com.

Custody Exchanges During COVID-19

Written by Rebecca Melone on . Posted in Child Custody, Family Law.

In Executive Order 55, Governor Northam issued a stay-at-home order for all non-essential purposes and limited social gatherings to less than 10 people in Virginia. The order specifically addressed child custody and visitation, stating that individuals may “leave their residence for purposes of … traveling required by court order or to facilitate custody, visitation, or child care.”

Regular Visitation

If you have an order in place for a visitation schedule, you should continue to abide by it to the extent possible. When arranging for custodial exchanges, all recommended CDC guidelines should be followed. For those that ordinarily exchange their children in a public location, parents should use caution and select a location that will minimize contact with the public. Both parents should use every precaution to make sure the child’s belongings have been and remain properly sanitized before entering the house.

If you do not yet have a custody order in place, you can still travel in order to facilitate visitation time for the other parent. You should continue to follow the status quo for the child, as their schedule has likely already been interrupted.

When Can Visitation be Denied?

In certain situations, such as those involving long-distance travel or high-risk employment, it may be reasonable to modify or suspend visitation. Remember to communicate clearly with the other parent prior to making any change to the custodial schedule. It’s best to document your communication or attempt at communication in a written form such as text or email. Remember that any violation of the court’s current order can be a basis for contempt later on. With that in mind, you should take whatever action is necessary to ensure the child is best protected from any risk of harm.

If visitation requires air travel or lengthy car travel, it may not be reasonable to subject the child or the parents to all of the potential exposures along the way. Parents can work to find alternative travel dates in the summer or fall to make up for lost time. If parents can agree to a change, they should document it in writing.

If a parent is employed in a high-risk industry, they need to take every precaution to ensure they are not exposing the child to any unnecessary risk. Those in the healthcare field have been recommended to leave their shoes outside, shower, and wash all clothing and everything else at the end of their shift before having any contact with family members or any household items.

If a child is at high-risk of infection or has significant underlying health problems, it may be necessary to suspend in-person visitation with a parent in a high-risk industry. You should be sure to provide phone, Skype, or Facetime availability for the child with the other parent. If the other parent does not agree to a suspension of visitation, it may be best to file a request for an emergency modification with the court.

Enforcement Issues

For those attempting to enforce their current orders or make changes to their visitation schedule, their options will be limited for a few weeks. On March 27, 2020, the Virginia Supreme Court extended its declaration of a judicial emergency and ordered the closure of its courts through April 26th. It’s likely that this deadline will be extended further into May. Some local courts have already announced closures extending into early May.

As a result, only those custody matters that qualify as an emergency can be brought into court for a hearing. Emergency matters are those where the child’s health, safety, or welfare is at risk of immediate harm or threat of immediate harm. The child must be present in the Commonwealth of Virginia in order for the court to take jurisdiction. Emergency jurisdiction is only temporary until the child’s home state can act. In an emergency case the court can order custody be granted to any interested party, including extended family members, on a temporary basis to ensure the child’s safety.

Melone Hatley.

While this is an extremely uncertain time it’s important to continue following any orders or agreements you have in place. Eventually, the court will resume its normal schedule and you don’t want to face contempt for violating any court orders. If you have specific questions about your case, contact one of the attorneys at Melone Hatley PC in our Northern Virginia office at 703-995-9900 or Virginia Beach at 757-296-0580.

 

Child Custody in Virginia… Can I Relocate Out of State?

Written by Melone Law on . Posted in Child Custody.

Let’s start with a real-life scenario:

John and Susan share physical custody of their daughter, Mary.  They live about 10 minutes apart in the same Virginia town, and though Mary’s primary residence is with her mother, Susan, John spends several days a week with his daughter.  He goes to her school functions, never misses a soccer game or piano recital, and takes her to church every Sunday.  Susan would like to relocate to Dallas.  She has gotten a new job there with a larger salary, and she will be close to her parents, Mary’s grandparents, and other extended family.  The schools are great and she and Mary will have a higher standard of living there, which will give Mary many more opportunities.

John does not want Susan and Mary to move.  He is involved in her life and does not want to lose contact with his daughter for extended periods of time.  John feels he is being cut out of Mary’s life and that the move will make it nearly impossible for visitation with Mary to continue.

Custody and visitation

Parents who are separating often wonder whether they can move out of state, and whether they can move their child with them. Whether it’s for a better job prospect, a new relationship, or to have support of extended family, parents need to take extra precautions before deciding whether to make a move following separation or divorce.

In Virginia, if a parent wishes to relocate, he/she must give at least 30-days written notice to the other parent. If your co-parent moves away without giving written notice, they will likely be in contempt of court.

A custody order is not set in stone and may be modified by the court at any time after the divorce.  If you share custody of your child with your co-parent, and the two of you can’t come to a decision about relocation, the court will step in and decide with which parent the child remains. In relocation cases, the court is interested in only one thing: whether the best interests of the child will be served by modifying the existing custody order and allowing the relocation.  The court does not take into consideration whether the relocation is in the parent’s best interest.  The court focuses on these three factors:

  1. The reason for relocation, including employment opportunities, standard of living, and contact with extended family members, and how it will enrich the child’s life.
  2. The effect a relocation will have on the relationship of the non-custodial parent and the child.
  3. How the relocation will affect the non-custodial parent’s visitation with the child.

It is important to note that under Virginia law, the parent seeking to relocate has the burden of proving that relocating is in the child’s best interest.  A non-custodial parent who has a positive relationship, is involved in his/her child’s life, and maintains an active, on-going interest has a much better chance of preventing a relocation than a parent who has little or no involvement.  It is also important to understand that even if a parent has sole legal custody, that does not give him/her the unilateral right to relocate out of the jurisdiction with their child.  The court does not look favorably if it feels that the parent requesting relocation is being manipulative and the move is designed to cut off family members who currently have a legal right to see the child.

Modifying visitation

If you look at the scenario at the beginning of this article, it is obvious that if the relocation is granted, John will no longer be able to be as involved in his daughter’s life as he currently is.  With over 1000 miles between them, he won’t be able to be an active participant in her daily life, go to parent-teacher conferences, attend her games and recitals, or take her to church.  Current visitation won’t be able to continue in this new situation.

The court will need to step in and modify the visitation order.  The court usually tries to make up for the “lost time” the non-custodial parent now misses with the child.  For example, the court may change the order from three nights a week and 2 weeks of summer vacation, to 4 three-day federal holiday weekends a year, plus six weeks of summer vacation, and the winter or spring break.  Visitation would be less frequent, but longer in duration.

There are never any guarantees as to what the court will decide.  Whether you are the custodial parent seeking to relocate or the non-custodial parent trying to prevent a relocation, the first step towards protecting your rights is to hire an experienced Virginia family law attorney with expertise in custody and relocation matters.  Your attorney will work hard to make sure you are treated fairly by the court.

About Melone Hatley

Melone Hatley is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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, visitation, relocation, and family law, 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.

Virginia Child Custody and Visitation FAQs

Written by Melone Law on . Posted in Child Custody, Family Law.

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 Hatley

Melone Hatley is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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.

© 2021 Melone Hatley, P.C.