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5033 George Washington Memorial HighwayYour children are the most important people in your life. Navigating the child custody, parenting time, and visitation process can be one of the most stressful times in your life.
The most difficult part of ending a relationship and/or divorce is to make decisions regarding your children. Where will they live? Who will be their primary caretaker? Will you ever see them again?
When a couple breaks up or a marriage ends, the two-parent household frequently becomes one-parent, and the children live with one or the other. Custody entails the legal care and responsibility of a child or children under the age of 18, and includes decisions about the child’s education, medical care, religious affiliation and other factors. When making a determination as to custody, there is the question of legal custody and physical custody of the child. Legal custody pertains to decision making and physical custody pertains to where the child resides. With legal custody, parents need to decide on whether they will have “joint legal custody” with the other parent. With physical custody, parents can opt for one parent to be the primary physical custodian, but shared physical custody is also an option. An experienced attorney will explain to you the differences of each and help you make the right decision for your child.
When making a determination with regard to custody, Virginia law requires judges to consider the best interests of the child. The best interests of the child are also how the court determines the visitations schedule that is in the best interests of the child. If you and the other parent are able to work together and/or your divorce is amicable, the court process can be avoided, and an agreement can be reached as to the custody and visitation schedule. If you and the other parent cannot work together on a custody and visitation agreement, the court will make a determination based on the best interests of the child.
To file for custody, or update an order, you must file a petition or motion with the Court Services Unit of the Juvenile and Domestic Relations (J&DR) Court in the city/county and state where the child previously lived for six consecutive months. If there is a divorce pending, custody and visitation can become part of that litigation.
Noncustodial parents still have visitation rights to their child, whether or not they were married. An experienced attorney can assist you in creating a visitation and/or parenting time schedule that works best for your child. If an agreement cannot be reached with the other parent as to the visitation schedule, the court will make a determination based on the best interests of a child. Having an attorney help you navigate this process is essential, as you will be required to present evidence and testimony in support of your position.
While your original visitation schedule may work at the outset, over time, things may change. New jobs, new schools, or a change in residence for either party may mean your current visitation schedule does not work and will need to be updated. If things change after the original order (called a “material change in circumstances”) you can return to court and request a modification. The judge will review the request and issue a new court order after hearing the evidence and testimony.
Unless your parental rights have been terminated, you cannot be denied visits to your child. Termination of parental rights is rare, but occur in cases of abuse and neglect, where social services are involved. This also requires a court proceeding.
If your former spouse is not paying child support as ordered, you cannot deny him or her access to the child. In order to force compliance, you will need to seek court action.
Keeping your child out of the custody and visitation process is the best approach; however, sometimes it is unavoidable. A child has the ability to express a preference, and their preference is one of the factors that the court can consider when making a determining as the custody and visitation. The child must be of reasonable intelligence, understanding, age and experience to express such a preference. There is no set age where the child can make the decision, as all of these factors need to be in place. Also, even if the child gives a preference, it does not mean they will automatically be sent to live with that parent. Preference of the child is one of the many factors the judge considers when making a determination as to custody and visitation. There reasoning of the court is ultimately based on the best interests of the child.
In some cases, there are third parties who seek custody or visitation of a child. There are important factors that go into determining whether a third party can have custody or visitation with a child, such as whether the parents are in agreement, whether there is actual harm to the child and is this in the best interests of the child. If you find yourself in this situation, it is important you consult with an attorney before taking any action.
Before moving, consult with an attorney about how it will impact your custody and visitation schedule. If there is an existing court order, Virginia law requires that you provide 30 days advanced written notice to the other party of any change in address.
Children are entitled to financial support from both their parents. The amount of child support will be determined based on the gross incomes of the parties, health insurance attributable to your child and any childcare costs.
Using the Virginia Child Support Guidelines, the monthly support amount paid by the noncustodial parent will be based on their percentage of the total income.
Parties can choose for direct payment of child support, whereas some parents choose to use the Virginia Department of Social Services Division of Child Support Enforcement (DCSE), which is a state agency that assists with child support. DCSE oversees the payments of child support. Navigating the courts and/or DCSE can be tricky, thus, having an experienced attorney assist you is invaluable.
Child custody, visitation and support are one of the most emotional parts of a divorce, and may not always work the way you hoped. If you need help deciding, modifying or updating your child custody, visitation or parenting time order, or need help getting child support, the Hutchinson Law Center is ready to help. Call us today at (757) 367-8888 or email using our contact form.
