5 Biggest Mistakes You Can Avoid Making During Divorce

Mistake #1: Waiting Too Long to Get a Divorce.

Even as a divorce lawyer, I never want to advise people to rush into divorce; however, we see time and time again the mistakes that good people make when they try to stay in a broken relationship. If you know your marriage is over but just want to wait a little longer, a lot of bad things can happen. When emotions run high, you may find yourself in a physical altercation that could result in an arrest or protective order. Or as a parent, you may make decisions that are not in the best interest of your children. We can help you avoid most of these mistakes by starting the planning process early.

Mistake #2: Not Hiring an Attorney Soon Enough.

While hiring an attorney may not be what you want to do, it is important to start planning for the impending divorce. Frequently we will see that one party has hired an attorney, and started putting plans in place, while the other party is still trying to work on the relationship. What this means is that while your spouse is making very calculated moves towards divorce, you are missing out on the opportunity to put a plan in place. 

As an attorney, our role in working with you is to plan, plan, and keep planning. This means we sit down and take inventory of everything that is going on in your life—assets, children, homes, etc. We then discuss what your ultimate goals are going to be at the end of this process. This allows us to focus on the goals as the issues become more emotional—we make sure we keep our eyes on the prize. 

Just because you hire an attorney does not mean that you are going to end in divorce. We can talk you through a lot of the planning phase and give you advice that helps you avoid possible mistakes. This will allow you to focus on your relationship and make the ultimate decisions on how the relationship is going to go. 

One recent example of a client that waited too long is that his wife started selling all of their assets out from under him and trying to hide the money. While we were able to find the money and stop the selling of the rest of the assets, this was something that could have been avoided if he talked to us sooner. 

Mistake #3: Moving Out of the Marital Home Too Quickly. 

When you are going through a divorce, it is a stressful process and you may find yourself wanting to escape that stress by moving out of the marital home—leaving your spouse and children in the home. This is almost never advisable. 

When you move out of the marital home, you are leaving your spouse comfortable. There is a good chance if the court is involved at this time, you will be ordered to continue paying bills on the marital home while you are also trying to set up your separate life. As much as you have relieved your stress by moving, you have also relieved their stress because you are no longer at the home. This means that as this process meanders along and we are trying to negotiate a settlement, your spouse will be less likely to negotiate because he/she is very comfortable. 

Further, if you leave the children at the home and move out, it is very likely that you will not get primary physical custody—the court is very likely to just leave custody the way that you chose to leave it when you moved out. 

So, if possible, stay in the home, and when we are trying to finalize the divorce either through settlement or trial, you are on equal footing with your spouse for the children, the finances, and the stress. 

Mistake #4: Not Separating Finances. 

When you are going through a divorce you must understand your financial situation. It is very hard to do that if all your accounts are joint, So, you should start separating your accounts as soon as you can. This includes credit cards, banking accounts, etc. The goal is to be able to control the incoming and outgoing money, not to leave your partner destitute. If you do try to leave your partner destitute, the court will quickly step in to fix that.  

You also want to pull a credit report as soon as this process is getting started. This will give you a snapshot of all of your open accounts at the beginning of the divorce process. As we get closer to the end of the divorce, we will have you pull another credit report and compare the two to make sure there are no surprises—the reality is that your spouse likely has the information required to pull credit in your name. 

Mistake #5: Trying Too Hard to Avoid Litigation. 

When you are going through this process you will receive a lot of wanted and unwanted advice. Some of this advice may be to avoid litigation/court at all costs. You will hear horror stories about what can happen in court and may start believing that the worst thing you could do is to go to court. While we will want to avoid court, if possible, we do not want to give away too much to avoid court. 

You may be inclined to give your spouse too much so that you do not have to go to court. What we will do is give you an honest assessment of what will happen if you go to court and then balance that assessment against the total settlement proposals—a cost-benefit analysis. 

Generally, the first offer we get will not be very good and we will need to further negotiate. A lousy first offer does not mean that you would not be successful in court, it is just a negotiation tactic. From here, we negotiate towards a realistic outcome versus trying to negotiate to intimidate the other side. 

Knowing the reality of what will happen in court will allow you to weigh your risk of going to court and understand the totality of your situation.  

These are just a few of the mistakes that you can make during the divorce process. We will work with you to avoid these mistakes and make sure you meet your goals. If you have already made some of these very common mistakes, we help you mitigate the damage and move forward. 

Our attorneys at Melone Hatley, PC are very experienced in this process. Not only can we help you make the right decisions, but we also ensure that you get the best possible outcome in court. If you are going through this process or know anyone that is, please reach out to us so we can help you or your loved ones avoid these mistakes as well. 

How to Cope with Divorce as a Christian

The topic of divorce is one that is tough for everyone. But when divorce directly conflicts with your faith, getting out of the bad situation can become overwhelming. 

When you got married, you likely never gave divorce a second thought; no one should go into marriage planning for divorce. But the harsh reality is that in our society, divorce has become extremely common, in fact, over 50% of marriages end in divorce. If you are a Christian, thinking about or going throug the divorce process can be scary and anxiety-inducing. You may believe that sharing this truth about yourself will lead to your community judging you or thinking that you are going against their core beliefs. In today’s article, we want to help you find ways to work through this fear and offer our support as a resource to work alongside you as we weave your way through what can be a challenging divorce process. 

5 Truths Christians Need to Know About Divorce

    • It always takes 2 to make a marriage work. You may be going through a divorce, but that does not mean that you didn’t do everything you could to save the marriage—if your spouse does not treat you with respect or respect your marriage, there may be nothing you can do. 
  • You are worth more than your marital status. You are more than just a wife. You play so many important roles; you may be a mom, a nurse, a teacher, a dog mom, or a foodie—don’t let a bad marriage define who you are. 
  • Surround yourself with people who affirm your worth. You must find people who give you a space to belong. You do not want to surround youself with people who blame you for your detioriating marital status. You want your community to build you up and support you, not tear you down.
  • There is no predetermined time when you will be “over it.” Healing happens for different people at different times. Because a divorce requires healing on many levels, you may have to double back in your healing process to address deep wounds. 
  • Your marriage was not doomed from the start. So often people want to find a reason their marriage fell apart and so they’ll pick themselves apart to find what they characterize as a “fatal flaw.” Divorce is too heavy a burden to entirely carry yourself and rarely can be seen at the beginning.

4 Important Steps to Take When Going Through a Divorce as a Christian

Step #1: Set Boundaries

Boundaries are so vital to surviving a divorce. If your spouse is cheating and/or abusive, it is even more vital to set healthy boundaries in your life and marriage. Just because you are the one that will no longer take the abuse from your spouse does not mean you are abandoning your faith when seeking a divorce.

Step #2: Connect with Other Divorced Christians

Seek out divorce care, divorce recovery, or MeetUps for divorced Chstirians. If there are none in your area, maybe consider starting your own. However you find them, it’s imperative that you are around people who are going through similar circumstances and have similar internal struggles as you do.

If you feel like you want a fresh start and a new Christian community, consider looking for a new church as it can be therapeutic to start over with a group of people that didn’t know you as a married couple. 

Step #3: Find a Divorce Attorney You Can Trust

For Christians, going through a divorce can be incredibly difficult because of the pressures and judgment they may feel from the church body, family, and friends. Our office is a judgment-free zone and we will continue to encourage you throughout your divorce to consider biblical healing your focus of the process. 

As a Christian, you understand the importance of trying to work things out peacefully. As such, we always discuss mediation as one solution for the divorce process. Being able to work things out amicably will always be better than fighting in Court.  

At Melone Hatley P.C. we understand that your beliefs and tenants are an important part of your life and we work to accommodate your beliefs; whether that dictates how you proceed through the divorce, process information, or decide to raise your children—we will be there every step of the way.

The Impact of Divorce on Spousal Military Benefits

Going through a divorce is tough and confusing for anyone, military or civilian. But when a military couple decides to get separated or divorced, there are rules that come into play that are not applicable in the civilian world. 

Military members and their spouses may decide to separate for one reason or another. In the case of separation, the non-military spouse retains spousal benefits while separated. Many service branches have regulations that require the enlisted spouse to provide support at a rate that is different than what a state court would order—these regulations cease once a state court has entered an order for support. 

Once the divorce is finalized, the benefits that the non-military spouse is entitled to will be regulated by Federal law—an example is the 20/20/20 rule. 

As a general rule of thumb, the military will not be involved in domestic issues, and decisions such as division of property, child custody, and spousal and child support will be decided in the state Court. Despite this “hands-off” approach, the military will not stand for its members conducting themselves in a way that reflects badly on the military branch of affiliation. As a result, the military denies its members the ability to dodge financial obligations to their family once they are separated by dictating the amount the service member must pay their ex-spouse. 

The Effect of Divorce on Military Benefits

A spouse may retain their identification card and continue to receive health care benefits, exchange, and commissary until the divorce is finalized. When the couple divorces, the effects mainly fall on the following areas:

  • Housing
  • Medical Care
  • ID changes
  • Spousal and child support

Housing

Military housing is meant for military members. When the military member moves out of the military residence, the ex-spouse and family members must also vacate the home within 30 days of that date. 

The military does not pay for the family member’s relocation fees as a move is considered a move to accommodate a military member’s personal problems. As an ex-military spouse, you may be entitled to a portion of your military member’s housing allowance, during the separation period, especially if you were abandoned by your military spouse. 

Medical Care

As long as you are married, you are entitled to medical benefits through the military spouse. If you were not married long enough, you will lose TRICARE due to the divorce. At that point, you can buy up to 36 months of temporary health care coverage through the Department of Defense Continued Health Care Benefit program. Eligible biological and adopted children of the military member may receive TRICARE benefits up to age 21 or age 23 if they are enrolled in college.

Identification Card

During a legal separation, the nonmilitary spouse retains his or her ID card and, therefore, they retain the same full benefits during the separation period they had during the marriage. The ID must be surrendered and is no longer valid when the divorce is finalized. If you were married long enough, you will be eligible to receive an updated identification card to continue to utilize military privileges. 

Spousal and child support

Each branch of the military has its own regulations regarding service members providing support to his or her family members upon separation in the absence of an agreement or court order. A commanding officer may enforce child and spousal support guidelines even if there is no court order and the military member may be punished for failing to pay family support. However, there are exceptions to this rule: If the nonmilitary member earns a higher salary than the military member or if the military member was a victim of domestic abuse. Further, once a court order is entered regarding support, that amount will be used over the regulation. 

The Differences Between Military and Civilian Divorce 

Military divorce and separation can create complex issues because they are governed by a combination of military regulations, state law, and Federal statutes. Military regulations and Federal statutes determine the division and/or distribution of military pay and benefits including retirement and health.

On the other hand, the laws of the state in which the divorce is filed govern how the divorce proceeds and how most of the divorce-related issues including child custody, visitation, and support, alimony/spousal support, and division of property and debts are determined. 

Why You Need Melone Hatley, P.C.

While many of the laws applied to a military divorce remain the same as a civilian divorce, there are some distinct differences that become complicated. You must hire a divorce attorney that has extensive experience with military-related family law as that will benefit you ten-fold in your divorce. 

While military personnel and their family members have access to free legal services through the Judge’s Advocate General’s Corps, the JAG are not typically familiar with state divorce laws and will refer you to hire a local attorney. 

Our family law attorneys know the regulations and laws inside and out and we will be able to protect your rights while you are going through the divorce process. If you, or someone you know, are going through divorce, Melone Hatley, PC will expertly guide you through this process to protect your family, your finances, and your career.

How Will the New Marijuana Laws Impact Custody Cases?

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”?

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.

When Should I Seek a Protective Order?

In any family law situation, whether it’s a divorce, child custody, or support case, emotions can run high and can even turn violent. Family violence has a broad definition and can include physical violence, emotional abuse, threats, threatening behavior, or harassment. If you find yourself on the receiving end of these acts; there are several things that you should do right away; you can call the police and/or seek a protective order.

First, you should try to document the situation. It may not be possible to actually record the situation but once you feel safe you can memorialize what happened through writing it down or texting friends or family. You should also decide if police intervention is necessary. If you are in fear for your safety, your first call should always be to the police.

Calling the police can be an extreme step in these types of matters as it may end up with one party being arrested and criminally charged.

If the police believe that the incident warrants further intervention, they will usually remove one party from the home and give the victim advice about seeking a protective order, and some will go so far as helping the victim get an emergency protective order. Either way, the police will make an incident report with the date, time, location, and responding officers to the scene. This will create a record that can be used later in your case, if necessary.

If you do not call the police at the time of the incident, and you have a continuing fear of the other party, you can still seek a protective order on your own. You will have to go to your local magistrate and swear to the facts of the situation that lead you to seek the protective order. You must show there is a credible fear and a continuing fear of other party. If you have children, you may want to add your child to your request for a protective order. If the magistrate believes that a credible threat exists, you will be awarded a preliminary protective order which will last until the court is able to have hearing, usually two weeks.

If you are afraid of your spouse, it is best to not wait to seek a protective order. The more time that you let lapse between the incident and seeking the protective order, the less likely it is that you will get the relief that you are seeking.

Frequently, we receive phone calls from people who will discuss what their significant other did a few months ago, or even years ago, and then want to know about seeking a protective order. If you have waited a significant amount of time and have continued living together, the court will not grant your request for a protective order. If there has been a recent incident, you may want to bring up prior incidents in the hearing to show the court the pattern of behavior and risk to your safety. If you move out as a result of a violent incident, you should remain out of the home until your protective order case can be heard. With all protective orders, you can request the court dismiss it in the future if necessary, but it’s hard to get it back once it’s gone.

Family violence is very serious and if you have been a victim or have been accused of family violence it is very important to contact one of our experienced attorneys at Melone Hatley to help you through this process. Contact us for a phone consultation today.

Estate Planning During Divorce

When going through a divorce there are many variables that must be addressed; do you stay in the home, do you sell assets, do you purchase assets, are you going to be able to negotiate an agreement or will this matter be hotly contested. One of the more overlooked aspects of the divorce process is preparing your estate for the unknown.

The following are common mistakes made during the divorce process and how to fix them:

 

  • Failing to update, or have in place, a power of attorney and advanced medical directive. If you do not have these documents in place, your spouse can make decisions until you are officially divorced, which may take over a year.
    • During this time, you want to create a power of attorney and assign that role to a trusted family member; a sibling or parent would be best. You will also want to create an advanced medical directive that lays out exactly what you want to happen in case you become ill and are not able to communicate your wishes. Even if you are temporarily unconscious, or under anesthesia, your agent can step in and make decisions on your behalf.
  • You do not have a will or have not updated your will. If you do not have a will, your spouse may get 100% of your estate if something happens to you during your divorce.
    • It is important to update your overall estate plan in order to direct your assets away from your soon to be ex-spouse. You can use beneficiary designations, revocable trust, and other estate planning tools to limit the potential exposure of your estate assets.
    • After the divorce is finalized, it is important to revisit your estate planning to ensure it fits in line with your goals. If you want to leave assets to a minor child, you’ll need to have a structure in place to ensure they receive the benefit you want without the risk of control by your ex-spouse.
  • Failing to update beneficiary designations on bank accounts or life insurance claims.
    • If you have not set your beneficiary designations and something happens to you; the assets will be subject to your estate and your spouse will potentially inherit 100%
    • Beneficiary designations are some of the most important elements of your estate plan, and can make a huge difference in the cost and time involved in probate. Make sure to review your options with a trusted financial advisor and estate planning attorney.

If you haven’t considered the impact of your divorce case on your estate plan, it’s essential to speak with a family and estate attorney who can advise you of your options. Make a plan today by consulting with our office in Reston 703-995-9900 or Virginia Beach 757-296-0580, or schedule a consultation online.

What is “status quo” in custody cases?

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?

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?

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.

 

 

 

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