Virginia Child Custody Legal Questions

Lawyers.com provides general information and not legal advice.  You need to confer with an experienced family lawyer in your area to discuss the legal significance of proper service.   If the Father is not properly served it will be difficult to proceed with the substantive issues raised in your inquiry. The focus should be on locating the father so you can proceed with custody, support, and paternity if raised as a defense.  Your question cannot be answered in this forum.  Please contact a family lawyer in your area to discuss your rights and all options that may be available in this matter.    Best of luck~... Read More

It depends on who has legal custody.  You mentioned physical custody, but you did not specify whether legal custody is with one parent or shared.  Since it sounds like the physical custody is shared, it would make sense that legal custody is also joint.  But I have seen some rare cases where one party has physical custody and the other party has legal custody.  Assuming you have joint legal custody then the parties must confer about any major medical decisions and make a joint decision.  If the parties cannot reach an agreement, the issue can be taken in front of a judge to decide. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.        ... Read More

The county where the order is entered retains jurisdiction, unless the courts decide to move it. Children of any age can potentially speak with the judge about their preference, if they are mature enough, but it is very unusual for a child under 7.  It is never up to the child - even teenagers - to make the decision of which parent they want to live with, although their opinion will be given more weight the older they are.  It is still just one of many factors the court can consider, pursuant to Virginia Code Section 20-124.3. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

You need to do what you think is right.  This is not necessarily a legal question, but a strategy question.  He is playing hardball.  I don't see any reason why you should hold back, but that is up to you. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

Unless he has a history of violence or negligence or there is some other reason to believe that he is incapable of properly caring for the children, it is highly unlikely that the visitation would be supervised.  If there are issues with this unknown person being around your kids, the father could be asked to provide further information about her and if there is still concern, you could ask that she not be allowed to be present during the visitation.  This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

He needs to file a petition for custody in his local Juvenile and Domestic Relations District Court or, if there is already an existing custody order in place, he needs to file in the same court that issued the order. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read More

No.  Unless the other parent's parental rights have been terminated, they have a right to legal notice of any change in custody. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

Yes, he can still petition the court for visitation at any time, based on a change in circumstances.  This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

If the father is not following the court order pertaining to the visitation schedule, then it sounds like the court order needs to be modified, so that you are not under this obligation to take your child to the transfer point when the father is never there.  But since he has a history of not showing up, there is probably little risk in stopping going there and if he complains or take you to court for it, you can start going again and explain that you stopped because he was not showing up. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.    ... Read More

Relocation cases are always difficult.  Unless there is a restriction in your custody order, there is no prohibition on you moving out of the area.  However, that will almost certainly interfere with the other parent's visitation rights.  If they have a set visitation schedule, how are they going to exercise it if you are in another state?  So that is going to instantly put you in violation of the court order.  So the appropriate thing to do would be to petition the court the modify the order to change the arrangement, so that you can move.  But be forewarned that this will often prompt the other parent to request a change in custody to them.  If the other parent has been actively involved in the child's life, the court may not allow you to take the child away from the other parent.  This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

Yes, you can request that.  No contact with a parent is granted in certain rare instances.  At the very least you could request that the visitation be supervised, which should definitely be granted in the case of a violent criminal.  If there is an existing visitation order in place, you may have to file a motion to have it modified.  If there is no current visitation order in place, then it is up to how much you allow him to see your son, unless he files a petition for visitation with the court. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

It's impossible to say for sure what constitutes a material change in circumstances because it is determined on a case by case basis.  However, the fact that the child is suffering in school should be a red flag for the judge that something is not good here.  Assuming the judge decides to hear the case, there should be a parental presumption in your favor.  However, if the other parent is the one fighting you for custody, even if someone else is pulling the strings, then it will be an even playing field.  You will have to show how it is in the child's best interest to change homes, which is always a drastic move but sometimes necessary. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

Of course you can file for custody of your child.  However because of the situation, the length of time that you have been absent from the child's life, and that the child is now in the custody of extended family, you have most likely lost your parental presumption that the child should be with you as opposed to with relatives.   Even though it may all be through no fault of your own and due to the fact that you were serving your country, the court has to look at what is in the child's best interest.  You will have to show that it is in the child's best interest to live with a father she barely knows, in a distant state away from her current home.  That may be a difficult case to make, but if you want to do it, you will need to file a Petition for Custody in the Juvenile & Domestic Relations District Court for the county in which the child lives.    This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

All cases involving relocating to another state with your child are difficult, if the other parent challenges it.  His cross-dressing may be odd, but it does not necessarily make him a bad parent.  You would have to show why it is in your child's best interest to move to NC, even though this will take her away from her father.  It can be done and his dual-personality may very well be a factor, but it will not necessarily be the determinative factor unless it adversely affects your daughter.  The court will look at ALL of the factors under Virginia Code 20-124.3 in deciding which of you should have custody:  https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-124.3  This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

Unfortunately there may not be much she can do to stop support. However, she may be able to lower the amount that she is ordered to pay by filing a motion to amend relaying the new changes since the original order to Court. I find it bizarre that the father is not paying support. He should also be paying support. She would need to discuss the support arrangements with the agency (DSS in order to determine the reason behind why that is.... Read More

Relocation cases are very difficult when it will take the children away from the other parent, if that parent has been actively involved with the children's lives.  You didn't say whether there is an existing custody and visitation order in place, but assuming there is, you will have to look at that order and see what it says.  Sometimes there is a prohibition on moving too far away with the child, but more often it is silent as to relocation.  However, if the father has regular visitation with the child, then depending on how far away you move, that will probably prevent him exercising his visitation, which will put you in violation of the court order.  In that case, you will need to petition the court to change the order to avoid being in contempt of court.  If the father fights it, it is possible that the court will prohibit the child leaving the state and if you still feel you need to go, the father could get custody of the child.  It really depends on your situation and how good of a custodian the father would.  You would have to show that it's in the CHILD's best interest, not just yours, to relocate to another state.  Your best option is usually to try to get the father to agree -- offer him the entire summer, every Spring Break, major holidays, whatever it takes.   This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More

When there is a material change in circumstances, such as the mother's deployment, then custody of the child will be determined under the same factors as every other custody case, pursuant to Virginia Code 20-124.3: https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-124.3.  If you and the mother cannot reach an agreement, the court will use these factors to determine who is better able to care for the child's needs and what it is the child's best interest. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.   ... Read More

It seems that the judge must have determined that the mother is not a danger to the child, even though she was violent toward you.  But you will have another chance to prove that you are better suited to have custody of your chid at the final hearing.  The court will use the following factors under Virginia Code 20-124.3 to decide who should have custody: § 20-124.3. Best interests of the child; visitation. In determining best interests of a child for purposes of determining custody or visitation arrangements including any pendente lite orders pursuant to § 20-103, the court shall consider the following: 1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs; 2. The age and physical and mental condition of each parent; 3. 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; 4. 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; 5. The role that each parent has played and will play in the future, in the upbringing and care of the child; 6. 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; 7. 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; 8. 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; 9. 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 10. Such other factors as the court deems necessary and proper to the determination. The judge shall communicate to the parties the basis of the decision either orally or in writing. Except in cases of consent orders for custody and visitation, this communication shall set forth the judge's findings regarding the relevant factors set forth in this section. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read More

You can go back to the court that issued your custody and visitation order and move to modify the order based on a change of circumstances, that being that the father is not exercising his visitation rights and that you are planning to relocate.  If the father comes out of the woodwork and starts fighting to keep the child here, you are going to have a really good reason of why you have to move and why it is in the child's best interest to go to North Dakota, not just yours.  Relocation cases can be extremely difficult in cases where both parents are actively involved in the child's life, but in your case where the father has been uninvolved, it should be much easier to get a change to the court order.  Depending on what the order says, there may not be anything technically preventing you from leaving.  But if he decided to suddenly start exercising his visitation, it could be difficult to accommodate that from North Dakota. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read More

Short Answer:  Yes. Long Answer:  When we are unable to provide actual notice to the other party, in certain types of cases, we are able to provide legal notice by publication in the newspaper.  In order to do this, the petition must certify that you either live out of state or that she has used due diligence to try to locate you and has not been able to determine your whereabouts.  In either event, a copy of the legal pleadings will also be sent to your last known address and posted on the courthouse door, as well as running in a local newspaper once a week for four weeks.  Whether you actually receive the notice or not is irrelevant in this type of case, as long as she has followed the proper procedure. Publication only works in cases where she does not need anything from you.  For instance, in this case, I am assuming the kids are with her, so she just wants a court order for custody.  She doesn't actually need to retrieve the kids from you.  Publication also works in simple divorce cases, where a person is not asking for any support or property from the other party, but just wants a divorce.  It would not work if she were asking for money from you, for instance. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.        ... Read More

Relocation cases are always extremely difficult.  You will have to show that it is not only what is best for you, but what is in the children's best interest.  This can be very difficult when the other parent has been actively involved in their lives because it is presumed that what is best for the children is to have both parents involved in their lives as much as possible.  So taking them away from their other parent is going to be a big strike against you.  All other things being equal, the father in this situation would ordinarily be given custody while you go get back on your feet.  Once he has custody, it can be nearly impossible to change that in the future because stability and not uprooting the children from one home to another is another big factor the courts will look at.  The only way to overcome all of this is if you can show that you have been the children's primary caregiver and that you are in the best position to provide for their emotional, physical, and educational well-being in the future, such that it is better for them to move away with you than to remain with their father.  It can be an uphill battle, if he wants to keep them here and if he has no major flaws in his own parenting abilities.  In these types of cases I usually encourage people to offer whatever they can to try to settle it - offer him to have the kids for the entire summer, for Spring Break, for major holidays, whatever he wants that might entice him to agree.  Because short of an agreement, you are potentially facing long drawn-out expensive custody battles or losing custody of your kids altogether.   This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.      ... Read More

If both parents are in agreement as to the child being in your custody, there is almost no chance that the child will be placed with someone else.  Unless either or both of the parents have lost custodial or parental rights or it can be shown that it will be harmful to the child to be in your custody, you should have no problem getting custody. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read More

The situation you describe does not constitute an ethical conflict under the rules of ethics that lawyers are bound to that would require your lawyer to withdraw.  But if you are uncomfortable with your lawyer FOR ANY REASON, you have the absolute right to choose new counsel. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read More

You can request custody as part of your divorce, but you don't have to wait until then.  You can file for custody at any time in the Juvenile & Domestic Relations District Court and the longer you wait, the more likely it is that your spouse will retain custody because there is a general preference for maintaining the status quo.  There is also a preference for children being with one of their natural parents as much as possible, so if you know you will be gone a lot and leaving the children with your mother, that means that your spouse will most likely get custody, if she is able to spend more time with the children.  However, if her living situation is really harmful to the children and you can show it would be in their best interest to live with you, then you could be granted custody.  But again, the longer you let them live in the current situation, the more it appears that you agree that it is okay for them.   This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read More