We’re Separating… Do I Need a Parenting Plan in Virginia?

A parenting plan is a written agreement between parents who are divorcing, or maybe have never been married but no longer wish to live together, that outlines the responsibilities and expectations for custody, visitation, financial obligations, and other parenting issues that may be specific to your situation. Though often included as part of a separation agreement, a parenting plan is not a requirement for separation or divorce in Virginia.  An experienced Virginia family law attorney can help you put a parenting plan together that is fair, covers the specific needs of both parents and the minor children, resolves problems, and avoids bitter and expensive custody disputes.  A parenting plan also allows you to avoid the scenario in which a judge makes decisions for you.  If you can work through these issues now, you can avoid time-consuming and costly litigation in the future.  It may also help you maintain a better relationship with your children’s other parent.  All parenting plans should take into consideration:
  • The best interests of the children
  • The importance of consistency in your children’s lives in both parents’ homes, and maintaining scheduled activities, like sports, recitals, school activities, and time with friends.
  • Keeping the lives of your children as normal as possible during a time of fear and change, going forward.
  • The continued healthy development of the children.

What is included in a parenting plan?

At the very least a parenting should outline the following in as much detail as possible:
  1. Legal custody – Who has the responsibility to make decisions for your children? This includes major decisions about health care, religion, vaccinations, and education, but also can include other issues like recreation or ear piercing.  Legal custody can be joint (both parents have the authority to make decisions) or sole (only one parent has the authority to make decisions.)  If a parent has sole custody, the plan should also specify what legal issues the other parent will be advised or consulted about.
  2. Physical custody – Where is the child’s primary residence? Again, physical custody can be sole or joint.
  3. Visitation – When and how much time will the child spend with the noncustodial parent? This includes the division of holidays, vacation times, summers, and special events. A parenting plan should include a schedule with calendar dates and times and specific drop off/pick up arrangements.  It may also include transportation costs if parents do not live close to each other.
  4. Changes/delays – How will a parent be notified if there is a change to the visitation schedule? For instance, if your child has a sleep-over at a friend’s house during visitation.
  5. Financial obligations – Who is responsible for which expenses of raising a child? This includes child support, childcare costs, medical care and health insurance, school tuition, college, music lessons, extra-curricular activity expenses, etc.
  6. Communication – How will the parents communicate with each other and with their children? How will they resolve conflicts and disputes?  This includes detailing how and when new significant others should be introduced into the lives of your children.
  7. Modifications to the plan – What happens to the parenting plan in case of remarriage, income increases or decreases, or relocation? The parties should include procedures for modifying or reevaluating the plan if/when circumstances change.  It is important that the agreement be both durable and flexible so that it can accommodate change when needed.
A Virginia parenting plan should allow both parents to maintain an active role in the lives of their children. It should also provide both parents with a clear understanding of their rights and obligations after the divorce.  It is specific to your unique situation and tailored to meet the needs of both parents and children.  If parents can’t reach an agreement on a parenting plan, the court will reach one for them.  In doing so, the judge, by law, must consider only the needs and best interests of the children.

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 parenting plans, separation agreements, 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.

Working Through the Unique Issues of a Grey Divorce

Even though the U.S. divorce rate has pretty much leveled off and even decreased over the past two to three decades, the divorce rate for couples over 50 years of age has increased dramatically and now accounts for over 25% of all divorces.  There are many factors that may help explain the rise in “grey divorce.”  Some likely reasons include: Growing apart – After a long marriage, couples feel they don’t have much in common anymore and have different interests and goals.  People expect more of marriage today.  Sticking it out in an unfulfilling marriage, just for the sake of being married, has become passe‘. Improved health and longer life expectancy – People are living much longer than they did even 50 years ago, and they’re healthier and active.  A divorce at 55 or 60 isn’t the end.  It’s often the beginning of a new and interesting chapter of one’s life and seniors are ready and willing to take action to pursue a more fulfilling life. According to data compiled by the Social Security Administration as of 2016:
  • A man reaching age 65 today can expect to live, on average, until age 84.3.
  • A woman turning age 65 today can expect to live, on average, until age 86.6.
  • About one out of every four 65-year-olds today will live past age 90.
  • One out of 10 will live past age 95.
Opportunities to Date – Divorced seniors are entering the dating scene at unprecedented numbers, looking for new opportunities to socialize and meet new people who share their interests.  Online dating is surging in popularity for those over 50. Women are financially independent – Women over the last 20-30 years have been in the workforce and led more independent lives.  They’ve had or may still have a career, other than motherhood, and don’t have to rely on their husbands for money.  Husbands are no longer the sole breadwinner in the family.  Women have much more financial stability as they age.  They have good salaries, retirement accounts, pensions, 401k accounts and are much more able financially to leave an unsatisfying marriage.

Critical issues to consider in the Grey Divorce

When younger couples divorce, the main issues are usually child custody and support, visitation, spousal support (alimony), and division of property.  No matter why you’re seeking a divorce later in life, the fact is the longer a couple is married, the more complex the issues surrounding their divorce will be.  The division of marital assets can be significantly more complex and complicated during divorce proceedings.  The Commonwealth of Virginia is an equitable distribution state.  That does not mean property is split 50/50.  Equitable means fair, not even.  It is important that you speak with an experienced Virginia family law attorney to ensure that your divorce gives you the new life you are planning for.  Here are the issues and financial challenges a knowledgeable Virginia divorce attorney can work through with you:
  1. Income and spousal support: How will each spouse maintain an income stream that meets their circumstances?  Will it require rejoining the workforce, delaying retirement, paying or receiving spousal support, or splitting a fixed income, like a pension, if you’re retired?
  2. Division of property: If you’ve been married 20 years or more, you probably have significant assets, both marital and separate property that will need to be divided.  It may be difficult to define which is separate property after a long marriage.  There are many considerations that are unique to a grey divorce when dividing assets, such as the length of the marriage, if one or both parties are retired or close to retirement, when and how assets were obtained, pensions and retirement accounts, inheritances, and much more.
  3. Social Security: In some circumstances, a spouse is entitled to benefits based on his/her spouse’s social security.  This depends on the duration of the marriage and each spouse’s income. Getting remarried will stop any spousal social security benefits.
  4. Life insurance: Anyone paying spousal support is required to have a life insurance policy in the amount and for the term that is equal to the amount and duration of the spousal support decreed in the divorce.  This can impact seniors, as even term insurance policies can be extremely and sometimes, prohibitively expensive.
  5. Long-term considerations: There are many issues surrounding getting older, including competency, long-term care, end of life care, and preparations for burial or cremation. This should be considered in a grey divorce. It is important to update your estate plan both during and after the divorce to protect your estate and your wishes.
As you can see, divorce issues for older couples are far more complex than issues a young or newly married couple face.  If you are considering divorce as a senior citizen, it is important that you speak with an experienced Virginia family law attorney with expertise in senior divorces.  Together, you and your attorney will carefully plan and prepare for all eventualities to ensure that you have the bright future you desire.

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 a grey divorce 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.

Can I Get an Annulment in Virginia?

The simple answer is yes, but in very limited situations.  In the Commonwealth of Virginia, marriage is considered a contract between two people, and with it come obligations and certain legal rights.  Unlike a divorce, which is the dissolution of a valid marriage, an annulment is the end of an invalid marriage.  In other words, when an annulment is granted, it is as if the marriage never existed.  This rarely applies to most marriages.  The court only grants an annulment when there is a legal reason why the marriage shouldn’t have existed at all, which leaves divorce as the only legal means to end most marriages.

Grounds for an annulment

Under Virginia law, a spouse needs a legal ground to annul the marriage.  The couple cannot have the marriage annulled if they have been married for at least 2 years.  The following are the specific legal grounds for an annulment.
  • The marriage was not properly solemnized per the laws of the Commonwealth of Virginia.
  • One spouse was a bigamist and already married at the time of the marriage, and that marriage had/has not been dissolved.
  • One spouse was impotent at the time of the marriage and unable to engage in sexual relations.
  • One spouse was incompetent and wasn’t mentally able to understand and consent to marriage.
  • The spouses were related by blood and were closer than first cousins.
  • The wife was pregnant at the time of the marriage by someone other than her husband.
  • The husband fathered a child with a woman other than his wife within 10 months of the marriage.
  • One spouse was under the legal age to be married in Virginia. The legal age for marriage in Virginia is 18.  But marriage is legal at 16 with the consent of a parent or guardian or if the girl is pregnant.  A girl 14 or older may marry to prevent a statutory rape conviction.
  • One spouse committed fraud and the marriage took place because of deception. Grounds for fraud include lying about venereal disease, lying about religious beliefs, and hiding a pregnancy by another person.  Lying about your age, wealth, health conditions, and prior marriages, though fraud, are not considered to be sufficient grounds for annulment.
  • One spouse only entered into marriage because of duress, force, or fear of serious harm.
  • One spouse was a convicted felon.
  • One spouse was a prostitute without the knowledge of the other spouse.
  • The marriage was a sham. The spouses married for reasons other than the normal purposes of marriage, such as to gain immigration status.
If one or more of the grounds for annulment is not met, then the marriage must end through divorce proceedings.  Even if one party thinks they have grounds for an annulment, there is no guarantee that a judge will agree and grant one.  It is best to consult with a family law attorney to understand the grounds, process, and if this is the best way for you to proceed given your specific situation.

The difference between divorce and annulment

There are several differences and implications to annulling your marriage versus a divorce.  Unlike a divorce, the judge has no authority to make decisions about the division of marital property, assets, debts, or to order spousal support.  But, the court still has jurisdiction over child custody, visitation, and support.  Children from annulled marriages are considered legitimate, and like in a divorce, must be financially supported by both their parents. Even in the 21st century, when divorce no longer carries the stigma it once did, for some, an annulment is preferable for religious or other personal reasons.  In some cases, a person files for an annulment for financial reasons.  Unlike a divorce, if the marriage was never valid, the judge can’t make decisions about property division or spousal support.

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 annulment and 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.

I’m Deploying! How are My Custodial and Visitation Rights Affected?

The Commonwealth of Virginia has the second largest military population in the United States.  In 2008, the legislature enacted the Virginia Military Parents Equal Protection Act, which addresses the concerns of deploying parents regarding custodial and visitation decisions. The Virginia Military Parents Equal Protection Act defines who is considered to be a deploying parent, including not only active duty but activated reserve units, and grants special rights to active duty service members with respect to custody and visitation. The Act defines a deploying parent as “a parent of a child under the age of 18 whose parental rights have not been terminated by a court of competent jurisdiction or a guardian of a child under the age of 18 who is deployed or who has received written orders to deploy with the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof.” Military personnel are relocated and deployed throughout their career.  In many cases, military personnel, both enlisted and officers, are unable to actively parent their children because they are deployed in the service of our country. When this happens, custody orders and/or visitation plans may be thrown into turmoil.  The Virginia Military Parents Equal Protection Act provides legal protection to members of the military in child custody and visitation issues.  Simply put, you can’t use the fact that a parent is in the military and subject to deployment as an argument for changing the child custody and/or visitation order.

The Act allows any deploying parent to:

  • Temporarily modify the current custody and/or visitation order to ensure that the service member’s deployment status is clearly stated as the reason for a change in the order and to ensure that the matter is re-heard within 30 days of the service member’s return from deployment
  • Designate his or her physical visitation time in the existing order to a family member with whom the child has a close relationship, including the spouse (stepparent) of the deploying parent, aunts, uncles, grandparents, etc. The delegation of these rights is temporary and do not create a separate visitation right for the relative.
  • Order the non-deploying parent to facilitate phone calls, Skype, and email between the child or children and the deployed parent. The court will also require the deploying parent to provide reasonable notice to the other parent about his or her leave schedule and require the non-deploying parent to reasonably accommodate that leave during deployment.
  • Grants the deploying parent the right to file a petition with the court which specifically identifies the service member as a parent about to deploy and requires the court to place the deploying service member’s petitions before other matters on the court’s docket.
  • Allows the court to accommodate any deploying parent who is unable to appear in person due to pre-deployment training or actual deployment by allowing that parent to testify by telephone or Skype.
All orders of the court based upon a deployment are temporary and modifiable upon the service member’s return.  When the deploying parent returns, the court will give that parent priority on its docket to modify the custody or visitation arrangement again. If the non-deploying parent does not want the order that existed before the deployment to be reinstated, it will be his or her burden to show that the prior arrangement is no longer in the child’s best interests.

If you are a deploying service member:

If you’re anticipating a possible upcoming deployment, the most important thing you can do is establish a custody and visitation arrangement immediately. It is probable that you’ll be relocated again and again throughout your career.  Consult a Virginia family law attorney, experienced in military deployments, about a custody and visitation arrangement. If you let your non-military former spouse have custody of your child while you deploy, without establishing a custody and visitation schedule before you go, your former spouse could move to another state and establish residency there for your child.  That state would then have jurisdiction over custody and visitation. Virginia is particularly sympathetic to military service members, so you’ll want to keep your custody case here, if at all possible. Establishing a custody and visitation arrangement will help ensure that you can use the protection provided by the Military Parents Equal Protection Act. After you return, your custody and visitation arrangement will automatically revert to whatever it was before you left.

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 deployment, custody, and visitation, 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

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.

What Does “Best Interest of the Child” Mean?

Virginia courts use the best interests of the child standard to determine custody and visitation of minor children. This means judges and mediators consider how parenting plans may affect children, and try to make decisions and orders that ensure the child’s life will change as little as possible during and after the divorce. The ultimate goal is to ensure that children will have a meaningful relationship with both parents, if possible. The concept of the best interest of the child can be difficult to understand.  So let’s start with a good definition.  In the context of child custody cases, focusing on the child’s “best interests” means that all custody and visitation discussions and decisions are made with the ultimate goal of promoting and encouraging the child’s happiness, security, mental health, and emotional development into adulthood. At its core, the best interest of a child should be determined by focusing on meeting the child’s, not the parents’, fundamental needs, as well as encouraging opportunities for his or her development. Of course, the needs and best interests of each child are unique. The child’s health, education, family, interests, and wishes should be taken into consideration.

As defined in the context of family law

It is much easier to pin down the meaning of the best interests of a child in regards to family law. This concept most often comes into play when planning living arrangements for a child during a divorce or child custody case. The objective of such arrangements should be to not only meet the physical and emotional needs of the child, but also to support the child’s sense of security and well-being. As you might imagine, this often means providing the child with opportunities to develop relationships with both of his or her parents and as many immediate relatives as possible (grandparents, aunts, uncles, cousins, etc.) However, the court will also consider if maintaining a relationship with either parent has the potential to have a negative impact on the child’s development.

How the Virginia courts determines the best interest of a child

Virginia gives primary consideration to the best interest of the child when planning living arrangements. The following factors are of particular importance:
  • The safety, security, and health of the child in the home of either parent
  • The current caregiver of the child and the amount of time the child has lived with him or her
  • Any possible negative effects on the child’s development and well-being if removed from their current residence
  • The child’s level of attachment to parents, siblings and other family members
Keep in mind that every judge will give different levels of consideration to factors regarding the best interest of a child. The list we reference below is not a complete one but rather a set of guidelines.
  • The health of both parents (physical, mental, and emotional)
  • The religion and culture of the family
  • The child’s age and level of development
  • Any unique physical, emotional, mental or other special needs of the child
  • The child’s current living situation
  • Proximity of immediate family members and extended family members
  • Parental discipline methods
  • History of abuse or violence
  • History of abandonment
  • Any drug or alcohol addictions on the part of either parent
  • The child’s wishes (this may be dependent on his or her age)
  • Home environment
  • The current residence of siblings
  • Any need on the part of the child to adjust to a new school, community, or living arrangement
  • The financial resources of each parent
Remember, the Virginia court system prefers to keep both parents involved in the child’s life whenever possible. Parental involvement is generally only limited or denied when one parent has been determined to be a threat to the child’s safety and well-being. As mentioned above, there is a high level of subjectivity in determining the best interest of a child. If you’re involved in a child custody case, it’s extremely important to work with an experienced and knowledgeable Virginia child custody attorney. The results of your child custody case may be largely dependent on the skill of your legal team. The well-being of your child is certainly not a matter to be left up to chance.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and Virginia Beach.  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, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Child Custody and Visitation in Virginia

When spouses divorce, the issue of “who gets the kids” is often the most difficult and stressful for both parents and children. In the Commonwealth of Virginia, the law does not favor either parent.  Instead it considers the best interests of the child, and looks at the relationship between each parent and child.  While others may seek custody (grandparents, aunts, uncles) there is always a presumption in favor the natural parents. If the parents are not married, Virginia considers any offspring the child of his or her mother.  If the father wishes to assert rights to the child, paternity must be established or admitted in court.  There are several ways to establish paternity, and a father should consult a family law attorney for guidance.  Once paternity is established, neither party will be given a preference by the court solely on gender.

Types of Custody

Custody is separated into two parts, legal custody and physical custody.  A parent with legal custody has the right to make plans and decisions for the child’s education, medical care, religious upbringing, discipline, and other matters concerning the child’s welfare.  A parent with physical custody has the child living with them z majority of the time and can make decisions about the child’s everyday needs.
  • Temporary custody refers to who the child is living with on a temporary basis. It is only in effect pending a full hearing.
  • Joint Legal Custody: Joint Legal Custody is when both parents have an equal right to make important decisions involving the child, including their health, education, and welfare.
  • Sole Legal Custody: This type of custody is where only one parent has the right to make decisions affecting the child’s health, education and welfare.
  • Primary Physical Custody: refers to where the child resides a majority of the time.
  • Split Custody: Split custody arrangements are rare, and they involve one parent having custody of one child and the other parent having primary custody of another child. Some considerations for these types of arrangements are the age and maturity of the child and their expressed preference.
  • Shared Custody: Shared custody refers to an arrangement where the parties share time with the children more equally.

What does the court take into consideration when awarding custody?

  • 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 do the parents live to each other?
  • How close do 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

Visitation

Visitation defines the conditions for the non-custodial parent to have meaningful contact with the child. Visitation does not confer any type of legal authority or decision making, it only relates to the schedule of the child to see each parent. Visitation rights are not limited solely to the other parent.  Additionally, grandparents, step-parents, and other close relatives may be awarded visitation rights. While there are no reported cases in Virginia of brothers or sisters being given visitation, a strong argument could be made that it would be in the best interest of the child. The court has the power to deny visitation. Normally the court will only stop visitation for a specific time period or until a certain task is performed. For example, the court has previously denied visitation until the parent entered and completed a substance abuse program. The court may deny visitation if it’s proven that the non-custodial parent is dangerous or has put the child at risk.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves 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, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Parental Alienation and Their Devastating Effects

Parental alienation is a form of manipulation in which one parent attempts to harm or destroy a child’s relationship with the other parent. It may also be referred to, in layman’s terms, as “parental brainwashing.” This process is often accomplished through lies, misrepresentation, and isolation. Parental alienation may start with something has simple as complaining about a spouse in front of a child and grow in severity as problems between the couple escalate before, during, and after the divorce. The purpose of this psychological alienation is to bring the child or children closer to the offending parent by driving them away from the targeted parent. Victims of parental alienation often become fearful and mistrustful of the alienated parent. Because children are easily influenced and suggestable, they struggle to see the “gray area” in this conflict. Instead, they are groomed to see one parent as “good” and the other as “bad.” Parental alienation was first brought to light by Dr. Richard Gardner in 1985. His theories on parental alienation syndrome developed as he worked with families dealing with child custody disputes. It is important to understand that Dr. Gardner defined the manifestation of parental alienation as being based on assertions that have no justification.

Tell-tale signs of parental alienation

It isn’t uncommon for parents to criticize their spouse in front of their children in a moment of frustration. Children may also overhear arguments or misinterpret events. So, how do you distinguish parental alienation from an everyday, ill-timed dispute? Keep an eye out for these clear and common signs of parental alienation:
  • Discussing and sharing adult topics with the child especially those regarding the couple’s relationship and separation/divorce. This sign goes beyond “over-sharing.” It is a calculated attempt to influence the child’s perception of each parent.
  • Denying or attempting to deny the other parent access to the child’s school and medical records.
  • Refusing to share important information about the child’s performance in school, his or her schedules, and upcoming events.
  • Creating code-words and signals with the child when discussing the other parent.
  • Updating the child on the separation or divorce proceedings as if he or she were an adult.
  • Openly blaming the other parent for any and all problems.
  • Not allowing the child to bring personal items to the other parent’s residence.
  • Instructing the child to pick a favorite parent or to choose just one parent.
  • Asking the child to monitor the other parent and report back.
  • Scheduling fun events and activities during the child’s time with the other parent so he or she will not want to leave.
  • Withdrawing from and ignoring the child when he or she mentions the other parent in a positive way.
  • Monitoring the child’s phone conversations with the other parent.
  • Offering the child a choice to visit the other parent or not when the court order does not allow for a choice.

Parental alienation and child abuse

Severe alienation may be considered a form of emotional child abuse. It is important to recognize that many professionals are unaware of parental alienation syndrome and its effect on children. When a child is severely alienated from a parent, he or she becomes fearful, angry, and even, depressed. The idea that the other parent is somehow evil or dangerous may generate feelings of low self-esteem and unworthiness in the child. These feelings are often internalized and come to the surface through destructive behavior such as substance abuse. Parental alienation may also wreak havoc on the child’s future relationships and compel them to seek out high-conflict, unhealthy relationships as an adult. Perhaps worst of all, victims of parental alienation syndrome are more likely to alienate their own children. If you feel you are the target of parental alienation and are being alienated from your child, know that there is help. The attorneys of Melone Law P.C., will fight for your rights as a parent to ensure that both you and your child’s best interests are protected.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves 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 our parental alienation and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

New Tax Reform Bill and Spousal Support Changes

President Trump signed the new tax reform bill December 22, 2017. Among the many changes to tax law, the final bill eliminated the tax deduction for spousal support or alimony payments. In the Commonwealth of Virginia, alimony, the legal obligation imposed on a person to provide financial support to their spouse after marital separation or divorce, is called spousal support. Currently, spousal support, unlike child support, is not based on a formula that dictates what one spouse will receive and the other will have to pay. Spousal support is decided on a case-by-case basis and most often involves negotiation as part of any divorce settlement agreement. If one of the parties asks for spousal support and the two parties cannot agree, then spousal support can also be ordered by the judge based on a number of factors, including:
  • Length of marriage
  • Standard of living
  • Income of both spouses including property and assets
  • Minor children and their ages
  • Age and health (physical and mental) of both spouses
  • Earning potential of each spouse
  • Current living expenses
  • Financial support and contributions each spouse made to the other’s education and career during the marriage and to the well-being of the marriage
  • Potential to receive inheritance or other assets
  • Retirement benefits
  • Financial obligations of each spouse
  • Time needed for dependent spouse to seek employment or earn the qualifications needed to obtain gainful employment
  • Tax consequences to each party

How does the new law affect my taxes?

Right now, spousal support payments are tax deductible by the payor and they’re taxed like regular income to the recipient. Since the recipient typically makes less money, and is usually in a lower tax bracket, this tax treatment tends to keep more money in the former family unit. According to the IRS, about 600,000 Americans claimed an alimony deduction on their 2015 tax returns, the most recent year for which data is available. Under the new tax bill, spousal support will be treated, for tax purposes, like child support.  For any divorce or separation agreement signed after December 31, 2018, or signed before that date but modified after it, spousal support payments will no longer be deductible by the paying spouse and are also not included as income by the recipient spouse. In other words, income used for spousal support will be taxed at the often higher rate of the payor spouse. The new tax law generally won’t affect anyone who is currently paying spousal support, but it will mean couples and their attorneys will need to change their thinking for divorce proceedings in 2019 going forward.  The new tax law has shifted the incentives for the parties.  The tax burden by the payer spouse will now increase by the amount of his/her marginal tax rate. The tax burden on the recipient spouse decreases accordingly.  For couples currently in divorce negotiations or under an existing arrangement where future spousal support is modifiable, couples and their attorneys should consider adding language in their spousal support provisions to address this new tax treatment.

Prenuptial agreements

It’s not just future divorces that will be affected by this change in the tax law. This will also affect prenuptial agreements. Prenuptial agreements usually contain language that states what spousal support would look like should the couple get divorced. Until now, those clauses have typically been drafted assuming the current alimony tax deduction will be in place. Eliminating the spousal support tax deduction may have implications about how property settlements are reached. This could make some divorce settlements more difficult to achieve.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves 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 the new tax law and spousal support and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

© 2020 Melone Law P.C.