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CHILD CUSTODY & VISITATION

There are few family law issues that are more difficult or emotionally challenging than child custody arrangements. The truth is: Both of you want to continue to be part of your children’s lives and, if you are not on the same page when it comes to scheduling or visitation rights, it can turn into a very stressful situation. At JMA LAW, we understand the difficulties you and your family must be facing and will do everything possible to help you achieve the results that serve the best interests of your children.

DIFFERENT CUSTODY ARRANGEMENTS

In Virginia, child custody is divided into two different types: legal custody and physical custody. Legal custody refers to the right of a parent or guardian to make decisions regarding a child’s upbringing, such as those concerning the child’s education, healthcare, or moral/religious instruction. Physical custody refers to having care and control over a child’s person.

Legal and physical custody may come in either joint form or sole form. In joint custody, parents share parenting time with their child and work together to make decisions regarding the child’s upbringing. In a joint legal custody arrangement, one parent is usually designated the primary physical custodian, with the child residing with that parent most of the time, while also having visitation periods with their other parent. In a joint physical custody arrangement, both parents split substantial periods of parenting time, such as weekdays/weekends or week on/week off arrangements.

In sole custody, only one parent has the right to make decisions for the child and retains care and control over the child. In a sole custody arrangement, the other parent may be awarded limited supervised visitation time.

BEST INTERESTS OF THE CHILD STANDARD

When determining child custody, a judge will examine several factors that, overall, make up the best interests of the child.

Here are some of the factors involved in determining child custody:

  • The preference of the child, if he or she is mature enough

  • The age of the child

  • Cultural or religious considerations

  • The overall mental and physical health of each parent

  • The ability of each parent to provide a stable and loving home environment

  • The child’s relationship with other members of the household

  • The special needs of the child and which parent can best meet those needs

  • If there is a pattern of domestic violence in the home

  • If either parent has a history of substance abuse

  • If either parent uses excessive discipline

These are just some of the many factors a judge will examine to determine child custody and it is important to keep in mind that family courts take a more holistic approach to this process and do not fixate on one factor.

VISITATION

When parents have separated or divorced, their parental rights are governed by a custody arrangement or order. A custody order will include provisions regarding visitation, or the right of a parent to spend time with their child.

Visitation, or parenting time, is understandably important for any parent, so if you are negotiating a custody arrangement with your child’s other parent or are facing custody litigation, you need a dedicated, experienced attorney who will fight to make sure you have the visitation time you need to build and maintain your relationship with your child.

Don’t hesitate to talk to a compassionate attorney at JMA LAW at an initial case evaluation. We’ll go over your options for obtaining the visitation rights that are in your and your child’s best interests.

TEMPORARY CUSTODY & VISITATION ORDERS

When parents separate or seek a divorce, the issue of child custody must be immediately settled until a final order can be entered by the court. To that end, courts often use temporary custody and visitation orders to establish a custody arrangement until the parents have had an opportunity to negotiate their preferred custody arrangement or to litigate their case to have the court decide upon custody.

As with any case related to child custody, the court will make a decision based on what they believe is in the best interest of the child or children involved. A temporary custody order, also known as a pendente lite order, may help prevent situations where one parent, who presently has physical custody of a child, refuses to allow the other parent visitation or parenting time without just cause. Usually, the court will prefer to create a schedule that both parents can agree to.

MODIFYING VISITATION ORDERS

Over time, a custody and visitation/parenting time arrangement may become unworkable for a family, especially as parents further their careers or get remarried, or children advance through school and take on new hobbies or extracurricular activities. For that reason, parents may file a motion in court to seek a modification of a visitation order. Modification may be allowed if a parent can prove the existence of a material change in circumstances since the original visitation order was put in place, and that modification of the existing order would serve the child’s best interests.

A material change in circumstances may involve a parent getting a new job or getting remarried, or a parent facing substance abuse or criminal problems, or a child developing educational or behavioral issues. If the court finds a material change of circumstances, it will again apply the factors in Virginia Code §20-124.3 to determine if a modification of the existing visitation arrangement would serve the child’s best interests.

THIRD PARTY VISITATION RIGHTS

Can a third party, someone other than the parent of a child be given visitation rights by the Court?  Well the answer to that question, is it depends.  In a visitation battle between a parent and a non-parent the court will consider various factors as in any case.


However, there are certain factors that must be present to overcome the objection of a parent to the third party visitation.

The Code of Virginia Section 20-124.2.B.  states that “The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.”

A person with a legitimate interest is defined as a “Person with a legitimate interest’. It shall be broadly construed and includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child….” Code of Virginia Section 20-124.1.

PARENTING TIME SCHEDULE

When both parents are entitled to spend time with their child under a custody and visitation order, they will need to have a parenting time schedule that designates when each parent will get to have time with the child. Parents may agree to a schedule after negotiation, or if the parents can’t agree, the court may decide upon a schedule that it finds serves the child’s best interests.

Parents may adopt a flexible parenting time schedule that allows the parents to liberally exchange custody according to the parents’ and the child’s schedules. Flexible parenting time schedules can work if the parents can effectively communicate with one another, and if the children subject to the arrangement are older and don’t require a more rigid or predictable schedule or routine.

However, most parenting time schedules specifically set out dates and times when each parent gets to exercise parenting time. Parenting time schedules will also spell out which parent gets to have visitation on holidays and birthdays. The schedule may also set forth procedures for exchanging custody, such as whether a parent must drive the child to the other parent or the other parent must drive to pick up the child, or whether the parents will meet halfway to exchange custody.

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DO I NEED A LAWYER FOR MY CUSTODY/VISITATION CASE? 

Although some parents can easily come to an agreement on custody and visitation time, you may need an attorney if your child’s other parent:

  • Has withheld your child or denied you visitation in the past

  • Has otherwise attempted to interfere in your relationship with your child

  • Has failed in the past to communicate with you regarding major decisions concerning your child

  • Won’t agree to visitation time that you believe to be fair

  • Wishes to relocate with your child out of the area or out of the state of Virginia

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HOW JMA LAW CAN HELP YOUR CUSTODY/VISITATION DISPUTE

If you’re in the midst of a dispute over visitation in your family’s custody order, JMA LAW can help protect your rights and interests by:

  • Offering personalized attention throughout your custody dispute

  • Maintaining open and constant communication throughout your case, so you stay up to date with developments in your case

  • Ensuring you understand your legal rights and options

  • Reviewing the facts of your case and analyzing the law to identify the precise legal issues you face

  • Advising you as to the best path forward to pursue the outcomes you want for yourself and your family

  • Exerting our core value of zealous advocacy by exceeding your expectations and effectively and aggressively defending your rights and interests

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