Custody and Visitation in Virginia

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Introduction to Custody and Visitation 

The question of "Who gets custody of the kids?" is one of the most difficult and often the most emotionally draining both for parents and their children, when spouses divorce. Custody and visitation are the legal terms in court ordered determinations of which parent the child lives with and the conditions for the child to visit the other parent. Custody and visitation are never considered to be final. In Virginia, the law does not favor either the mother or father. Rather, they look to the relationship of each parent with the child. While grandparents and others may seek custody, there is a presumption in favor of the natural parents. This section is designed to give you a general knowledge of the issues involved in determining the parties custody and visitation rights.  

The 1994 General Assembly enacted a new chapter 6.1, "Custody and Visitation Arrangements for Minor children," Va. Code Ann Section 20-124.1 et seq. The statute requires the court to provide a prompt adjudication of custody and visitation arrangements upon a consideration of all of the facts. Mediation is also to be used where appropriate. 

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When should you have an attorney?

In the event that you have a highly volatile, hostile or contested custody issue you should seek out a lawyer to represent you. Additionally, if the other parent is using the services of an attorney, it is advisable that you also have an attorney.  

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Jurisdiction

Jurisdiction is the imaginary fence that separates the subjects one court hears from another. There are two types of jurisdiction: personal and subject matter. The court must have both types of jurisdiction to hear a case. The Juvenile and Domestic Relations District Court, has jurisdiction over custody cases. Personal jurisdiction, the power to require a person to appear in court, is discussed in the Service of Process section of this Web site. To have jurisdiction over your specific custody or visitation case the court will require one of the following under Section 20-126(a):  

• Virginia is the home state of the child (lives in state, goes to school in state) and the parent has sufficient contact with the state (works, votes, lives, pays taxes in Virginia). 

• Virginia was the child's home state within the last six months and the parent filing for custody continues to live in Virginia and the child is absent from the state because another person took them out of Virginia claiming custody. or 

• The child and at least one of the parents have significant connection with Virginia (live, work, go to school here) and in Virginia there are more records and witnesses to give evidence of the child's present or future care, protection, training and personal relationships; or 

• The child is physically present in Virginia and was abandoned; or emergency protection is necessary (the child was threatened or subjected to abuse or neglect); or 

• No other state would have jurisdiction based on 1,2,3, or 4 above. 

• Another state says Virginia has jurisdiction. 

• Child was removed from Virginia and the Uniform Child Custody Jurisdiction Act does not apply and no other state has jurisdiction, then Virginia will have jurisdiction if: 

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  • Virginia was where the married couple lived, paid taxes, voted, etc., but the parents are now currently separated or divorced or Virginia was where the marriage contract was last performed. 

  • One parent is a resident of Virginia and was a resident when the child was removed. 

  • Court has personal jurisdiction over the parent who has removed the child. 

The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by Virginia, as well as the other 49 states. This act gives jurisdiction for custody cases to the location that is most closely associated with the child. Within Virginia, the Circuit Court has jurisdiction to hear child custody cases. That court has the power to override any agreement if they believe the agreement is not in the best interest of the child.  

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Unmarried Cohabitants

If the parents are unmarried, the child is the child of his/her mother. In order for the father to assert rights to the child (including rights to custody or visitation), paternity must be admitted or established in court. Paternity can be established by: judicial determination of paternity; father's acknowledgment of paternity in writing; father's open and notorious recognition of the child as his own; or by marrying the mother and then acknowledging himself as the father, either in writing or orally. In order for a father to bring suit to establish paternity by judicial determination, he should file an action for "filiation"; but, this is not required to seek custody if any of the other three methods has established paternity. Once paternity is established, neither party will be given a preference based solely on the gender.  If you are seeking to establish paternity, consult an attorney.  

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What if we agree about custody and visitation?

Custody Agreements

If you and the other parent have already come to a fair agreement on the custody and visitation issue, you may want to write your own stipulation and consent order. A stipulation is a statement of the settlement that you have reached. It is accompanied by a consent order for the judge to give the agreement the power of a court decision.  

If you choose to go this route, you and the other parent should be as specific as you can to avoid future conflicts. Who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won't be there on time? How much notice should you be given if they are planning a vacation? How far away may the other spouse move? What you might think you can figure out as you go along could actually blow up into a full scale war later. The Stipulations should state everything that you have agreed upon. You should not rely on any oral promises.  

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What if we disagree about custody and visitation?

Mediation

If you and your spouse are having trouble reaching an agreement, you should consider mediation. You may have heard the term mediator used in news reports about labor negotiations or the 1994 baseball strike. A mediator specializes in helping people reach an agreement that is fair and will last. The sessions are confidential and are not reported to the court. A mediator's role may be limited to custody or may also cover other issues such as marital property if you choose. Mediation is not an option that is appropriate in cases where there is a genuine issue of physical or sexual abuse of the child or one of the parties. It is also important to get a legal advisor for this process. The mediator's role is not to take sides, but to bring the two sides together. Additionally, if the mediator is not an attorney, he/she may be unaware of some specific legal issues. 

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Court Ordered Mediation

The court has the power to suggest mediation whether the custody issue is brought up by an initial proceeding, a request for modification or a contempt action.  

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What does the word "custody" mean? legal v. physical? joint v. sole? split?

Types of Custody

Temporary Custody

De facto (means in fact) custody refers to who actually has custody of the child at this time. This does not carry the weight of the court behind it. In order to formalize custody before you begin litigation, one should file a motion for Pendente Lite (meaning pending litigation) or temporary custody. Temporary custody is subject to review based on the "best interests" of the child standard, to be discussed below. It is not an "initial" award of custody because it is understood to be temporary pending a full hearing. 

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Sole Custody

Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child's everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.  

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Split Custody

Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.  

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Joint Custody

Joint Custody is actually broken down into three categories. Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence. In Shared Physical Custody the child has two residences, spending at least a major portion their time with the other parent. Additionally, you can make your own special joint custody agreement that is any combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.  

In order to assure the best interests of the child the court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody that is also very relevant to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion or what school, the court may strike down your agreement. Other factors include: willingness to share custody; fitness; child's relationships with parents; child's preference; ability to stabilize child's school and social life; closeness to parent's homes (primarily a factor during the school year) ; employment considerations (e.g. long hours, extensive travel, etc.); age and number of children; financial status; benefit to parent. Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn't being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any assistance programs. Currently, AFDC and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may be jeopardizing your benefits. This list is not meant to be exhaustive and the court will hear anything that they believe to be relevant.  

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The Best Interests of the Child Standard

Regardless of any agreement you may have reached, the court's standard for initially awarding custody is to determine the best interests of the child. In order to do this they look at several factors. It is important to remember, though, that no one factor carries any more weight than any other. The following list is some of the factors, but not all, that courts will consider.  

Primary Care Giver

Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?  

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Fitness

What are the psychological and physical capacities of the parties seeking custody? The court may also consider evidence of abuse by a party against the other parent, the party's spouse, or any child residing within the party's household (including another child). 

Agreements

Is there a custody stipulation already drawn up?  

Ability to Maintain Family Relationships

Who will be able to keep the child's family most intact? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any adverse action on the part of the other parent.  

Child Preference

The decision of the court may be considered reversible error if they won't hear the child's preference. However, the court has the discretion to interview the child out of the parents' presence. A child as young as 5 or 6 years of age may be heard. Though it is rare the court will hear from a child under 7 years, the child's ability to tell the truth from fiction and maturity will be the guidelines for whether a child may be heard. A child of 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. Additionally, the court has the power to appoint an attorney for the child in contested cases.  

Material Opportunity

Which parent has the financial resources to give the child more things?  

Age, Health and Gender of Child
 
Each of these factors are critical factors in the decision concerning what is in the best interests of the child. If the child needs special care, or is too young to make a decision, or has a very close relationship with the same sex parent, the court will take these factors into consideration.

Residences of Parents and Opportunity for Visitation

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

How long have the parents been separated?

Any Prior Abandonment or Surrender of Custody

Is there a history of one parent walking out and leaving the other parent to cope with the child and the home? Which parent left when you last broke up?  

Religious Views

These will bear on the court's decision only if shown to affect the physical or emotional well being of the child.  

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Visitation

Visitation is the part of the court order that defines the conditions for the non-custodial parent to have contact with the child. Visitation is limited by legal custody being vested in the other parent. This means that your visitation does not give you the authority to conflict with the long range decisions and policies of the parent with legal custody. For example, if the parent with legal custody has decided to raise the child in the Jewish tradition, the parent with visitation rights may not take the child to be baptized in a Catholic church.  

There are no reported cases of a court honoring complete denial of visitation for a parent. Even in cases of abuse, the only reported cases have upheld supervised visitation. Supervised visitation is when the parent is only allowed to visit with the child in the company of another person. This person is usually a friend or relative that the two parents agree will be allowed to act as a chaperon. Supervised visitation often calls for a restriction of visitation to a particular location and time.  

Who can be awarded visitation? Obviously a biological parent can be awarded visitation. Additionally, grandparents (even when the parents weren't married or are not currently divorced) and step-parents may be awarded visitation rights. While there are no reported cases of brothers or sisters being given visitation, a strong argument could be made that it would be in the best interest of the child. Section 20-107.2 of the Virginia Code provides in part: 

In any case involving the custody or visitation of a child, the court may award custody or visitation to any party with a legitimate interest therein, including but 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 " legitimate interest" shall be construed broadly to accommodate the nest interests of the child. 

When can visitation be denied? The court has the power to deny visitation. Normally the court will only stop visitation for a certain time or until a certain task is performed. For example, the court has previously stayed visitation until the parent met their financial obligation. Many parents feel they have the right to stop paying child support, but they are wrong. Withholding of child support will only get you in trouble and possibly arrested.  

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When the Custody Order Agreement is Violated
People go into courthouses everyday telling clerks that the parent has not returned the child at the scheduled time following visitation and they don't know what to do. When a custody order is violated the law requires the custodial parent/lawful custodian to first demand the return of the child.  

If the child is not returned within 48 hours, the visitation parent may have committed one of the following crimes:  

If the abducting parent remained within the state:  

misdemeanor: can be fined $25 or imprisoned for up to 30 days  

If the abducting parent crosses the state line: 

felony: can be fined $250 -$1000 and/or imprisoned 30 days to 1 year 

If the child has actually been stolen by the other parent you should report this to your local police department immediately. The FBI can be called in to find the fugitive parent and the child as well.  

The only exception to this rule is when the child is in clear and present danger (the victim of abuse or abandonment) requiring the non custodial parent to save them. The non custodial parent must be ready to prove this clear and present danger and they are required by Virginia law to file a petition within 96 hours. In that event, both parents will need a lawyer.  

Once an incident like this has happened, you may want to consider modifying the custody order.  

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Modification of Custody

When a parent seeks to have the custody order changed, it is his/her burden to show the court why it should be changed. The court follows the old notion of, "if it isn't broke don't fix it." This is based on the idea that stability is best for the child unless you can show that there is something in the environment that will adversely impact on the well being of the child. This is not as simple as it may seem. The factor(s) in the environment have to not just make your home as good as the custodial parents, but better. To do this you must show that there has been a substantial change in circumstances and that it is in the child's best interests to make the change you are proposing. If the two homes are thought to be equal, then custody will stay as it is. Remember, a temporary or pendente lite custody order is not a final order. You would not be required to show a substantial change in circumstances to have custody changed in the "permanent" custody order.  

The court that made the original custody and visitation order retains jurisdiction to decide modification unless the parties and child no longer have close ties to the court and the court surrenders its jurisdiction. However, the court with original jurisdiction may refuse to hear the custody case if a child has been wrongfully taken from another state or taken without the consent of the person entitled to custody. 

The criteria for custody modification have been derived from case law, however one factor has been incorporated into the Virginia Code. Section 20-108 of the Virginia Code states in part that; " intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court." Other factors that may justify a modification of custody include remarriage of one of the parties, death one of the parties, and criminal activity by one of the parents. Circuit courts have jurisdiction over child custody and visitation in proceedings incident to divorce. Under certain circumstances, the circuit court and the juvenile and domestic relations court will have concurrent jurisdiction. 

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Taxes

Usually the parent with custody can claim the exemption for the child. However, the parents may agree to claim the child exemption on alternate years. In that case, the parent with custody needs to sign IRS Form 8322, Release of Claim to Exemption. Whether or not you are taking the exemption for the child, you may still file as "head of household."  

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