Disagreements over custody and visitation are some of the most emotional and difficult issues for parents to resolve. Differences in parenting styles, arguments over education and health care decisions, and new relationships are just a few of the problems that have to be confronted. We understand the emotion, confusion and worry that our clients feel when faced with these issues. Our lawyers will listen carefully to your situation, provide you with honest information, and help you work through this difficult time.
Can We Resolve Custody and Visitation Without Going to Court?If you and the other parent are willing to discuss custody and visitation, there are several options. First, if both of you are willing to communicate, and can work together to resolve conflicts, you can try to work out the details yourself. Putting your agreement in writing is usually a good idea. Second, you can attempt to resolve these issues through mediation. Both parents would meet with a mediator for as little as one, and sometimes multiple sessions. The mediator doesn't make decisions for you, but works with both parents to see if an agreement can be reached. Third, there is traditional negotiation. In traditional negotiation, each parent hires a lawyer. The lawyers communicate with one another, discuss options with their clients, and attempt to reach an agreement. If an agreement is reached, the lawyers reduce the agreement to writing. Fourth, the parents can attempt to resolve their issues through collaborative law. In collaborative law, each parent hires a lawyer who is specially trained in the collaborative law process. Both lawyers and both parents sign a contract agreeing to attempt in good faith to resolve their issues outside of court, and that each parent must obtain a new lawyer if an agreement cannot be reached. Both the parents and the lawyers attend a series of meetings together, and if an agreement is reached, the lawyers reduce it to writing. The lawyers at Davidson & Kitzmann, PLC are experienced in all of these methods, and will work with you if you would like to resolve your custody and visitation issues without going to court.
What if We Cannot Resolve Our Issues?There are many times when parents cannot resolve their custody and visitation issues outside of court. For example, there may be domestic violence, one parent may have a substance abuse problem, the parents may have unrealistic expectations or make unreasonable demands, or a parent is preventing the other parent from seeing the children. In these cases, either parent can ask a court to resolve the issues. If the parents are married but no divorce action has been filed, or the parents are not married, the issues will likely be heard by the Juvenile and Domestic Relations District Court. If the parents are married, and a divorce action has been filed, the issues will likely be heard in a Circuit Court.
What are the Types of Custody?Physical Custody
Physical custody is where the child primarily resides. The parent who has physical custody, generally provides the day-to-day care and decision-making for the child. A parent has "primary" or "sole" physical custody when the child lives primarily with that parent, while the other parent has visitation. The parents share joint physical custody when the child spends approximately the same amount of time with each parent.
Legal custody refers to the ability to make major decisions that affect the health and welfare of the child. These decisions include religion, education, and medical treatment. Very often, parents are awarded joint legal custody, which means that both parents work together to make decisions regarding the children. Sole legal custody occurs when one parent has the exclusive right to control the child's upbringing. With joint legal custody, the parents share responsibility for decision-making.
Split custody is where each parent takes custody of different children.
What Factors Are Used to Determine CustodyVirginia Code § 20-124.3 requires the judge to determine the best interests of the children by examining ten factors. These factors are:
- The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
- The age and physical and mental condition of each parent;
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
- The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- The 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;
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
- Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
- Such other factors as the court deems necessary and proper to the determination.
What is a Custody Evaluation?The court has the power to order a custody evaluation prior to trial. The custody evaluation is made by an outside expert on whose assistance the court will rely in ordering a child custody arrangement that is in the best interests of the child.
Will a Guardian Ad Litem be Appointed?In proceedings in the Juvenile and Domestic Relations District Court, the judge has the power to appoint a lawyer for the children. this lawyer is known as a guardian ad litem. The authority to make such appointments is granted by Section 16.1-266 of the Virginia Code. If the decision of the Juvenile Court is appealed to the circuit court, the judge there also has authority under Virginia Code § 16.1-296 to appoint a guardian ad litem.
Modification of Custody Orders in VirginiaAs children grow, parties remarry, and priorities change, you may find that your custody order needs to be changed. Virginia Code § 20-108 requires the party petitioning the court for modification of a custody order to prove that (1) there has been a material change of circumstances since the entry of the last order, and (2) it is in the best interest of the children to modify custody.
The change of circumstances may be either positive or negative. For example, a parent's remarriage or getting a new job could be a positive change of circumstances. On the other hand, a child performing poorly at school, developing behavioral problems, or a parent's substance abuse problems could be a negative change of circumstances.
The change of circumstances must be something that happened after the date of the last custody order in your case - it cannot be based on something that happened before the entry of the last order.
If the judge believes that a change of circumstances has occurred, each parent must still present evidence to prove that the existing custody order should be modified. In making a determination, the judge will consider the evidence and apply the factors set forth in Virginia Code § 20-124.3.
Spare the Child Video from the Virginia State Bar
Contact UsIf you or your children are unhappy with your current custody arrangement, call us today at (434) 972-9600 or contact us online.
Davidson and Kitzmann, PLC
211 E. High Street
Charlottesville, Virginia 22902
Tel: (434) 972-9600
Fax: (434) 220-0011
We are located in Charlottesville, but our lawyers handle cases in Charlottesville, Albemarle County, Greene County, Fluvanna County, Louisa County, Nelson County, Madison County, Orange County, Richmond, Roanoke, Harrisonburg, Staunton, Waynesboro, Augusta County, and across Virginia.