Virginia Child Custody Legal Questions

You need to register your New Jersey Order in the state where your daughter lives to make any custody modifications if no one is residing in the state where the order was entered.  Once you register the NJ order there, then you can proceed with a modification.  Florida will have jurisdiction if the child has been living in that state for 6 months or longer.  Virginia will not have jurisdiction if the child does not live her  and never lived here.... Read More

You certainly have the right to sleep in your own home; however, your boyfriend could lose the right to have his children spend the night with him if you are sleeping in the same bedroom with him while the children are in his care.  Depending on the wording of the agreement, he could lose that right if you are under the same roof.  Your boyfriend will need to refer back to his agreement for the exact verbiage.... Read More

If your ex has visitation based upon an order of the Court, you can be held in contempt of that order for withholding the children.  If there is no order, but just an agreement between the parties, there would be no contempt.   If there is an order, you can file a motion to amend the visitation and ask for an expedited hearing to bring your concerns to the attention of the court.  You could ask the court to temporarily (pending a hearing) suspend visitation, order no consumption of alcohol while the children are in his care, etc.   If there is no order, you can file a motion to establish a visitation order, requesting certain stipulations to address your concerns f you are ever concerned about the safety or wellbeing of the children while in his custody, you can always contact your local law enforcement agency to conduct a welfare check on the children. The above response has been provided for general guidance on matters of interest only and is not intended as a legal advice.  No attorney-client relationship has been created between the reader of this response and The Law Office of Karen M. Holman, PLLC.... Read More

Yes, it is possible for your daughter to obtain custody and child support, if the father cannot support a claim that he should have custody.  She should contact the Juvenile & Domestic Relations District Court for the county in which she lives and make an appointment to file petitions.  The intake specialists at the court can help her complete the necessary forms and will take care of setting a court date and having the father served with legal notice.  All she needs to do is show up.  The first court date will be a Status Hearing, at which the judge will determine whether the father was served and, if he shows up, what if anything he wants.  If the father challenges her claim for custody or support, then the case will be continued for a trial date.  At this point she should consider hiring a lawyer to represent her to make sure her case is well presented.    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. ... Read More

Joint legal custody means parents share in both the joys and the burdens of raising their child as they share in the decision making processes related to where they live, in addition to health, education, religious training, recreational activities, and general well being. Important parental decisions affecting the child's growth and development should be made jointly wherever possible. I suspect your current custody order requires written notification of a change of address. Although you've spoken to the father about it, he may still object to the move and, if you move without his written permission, he may petition the court to enjoin (prevent) your relocation with the child. If you've already moved, the court may order the child to be returned to the jurisdiction where litigation is pending. If contested, your move must provide an independent benefit to the child, and be in the child's best interests. Consideration is likely to be given to the level of involvement of the father, and whether the child will continue to have the same degree of interaction with him. The above response has been provided for general guidance on matters of interest only and is not intended as a legal advice. No attorney-client relationship has been created between the reader of this response and The Law Office of Karen M. Holman, PLLC.  ... Read More

  In a hearing, you would first need to prove that there has been a material change in circumstances, then you would need to prove that modifying the current order is in the best interests of your son. Based upon the circumstances you've described, it appears likely that there has been a material change in circumstances since the entry of the court's last order:  your son is significantly older than he was in 1998 when (I presume) the last custody order was entered; Dad has remarried (again); and your son is close to graduating.  You could file a motion to have the court review or amend the order.  The forms are available from your local juvenile and domestic relations district court clerk's office.  You would: (1) describe the current custody/visitation order; (2) describe what you want the order to be (sole legal/physical custody; and (3) why you want the order changed.  Once a material change in circumstances has been established, any proposed modification to the prior order would be based on what is in your son's best interests. You've indicated your son doesn't want to leave.  At 17, he has a say in the matter.  The age of 14 is considered the "age of discretion" at which time the child's wishes are given considerable weight.  However, this is only a rule of thumb and is always subject to change based on the unique circumstances of each case. he above response has been provided for general guidance on matters of interest only and is not intended as a legal advice.  No attorney-client relationship has been created between the reader of this response and The Law Office of Karen M. Holman, PLLC.    ... Read More

It is not a question of who filed for custody first, but rather who is in the better position to care for the child's needs.  Both parents start on an equal footing and then the court will consider factors, such as who has been the primary caregiver for the child in the past and who is best situated to care for the child in the future. All of the factors used to determine custody are spelled out in Virginia Code section 20-124.3:  § 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. 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. ... Read More

Your children have the right to receive financial support from their father. Unless you have remarried and your husband is willing to adopt your daughters, it is not likely that the court will terminate their father's rights. Based upon the circumstances you've described, it appears there has been a material change in circumstances since the entry of the court's last order. You could file a motion to have the court review or amend the order. The forms are available from your local juvenile and domestic relations district court clerk's office. You would: (1) describe the current custody/visitation order; (2) describe what you want the order to be (sole legal/physical custody with no visitation to father; and (3) why you want the order changed. In a hearing, you would first need to prove that there has been a material change in circumstances, i.e. father's incarceration, substance issues; then you would need to prove that modifying the current order is in the best interests of the children. The above response has been provided for general guidance on matters of interest only and is not intended as a legal advice. No attorney-client relationship has been created between the reader of this response and The Law Office of Karen M. Holman, PLLC.  ... Read More

Yes, you may seek sole legal and physical custody of your child, but it is impossible to predict with any certainty whether or not you will get it.  There are many factors that the court will take into account and you may get different results from different judges.  It also depends largely on what the father wants and how hard he fights for it.  However, even if you have sole custody, this does not prevent the father from seeing his child. The court will allow him as much visitation as is reasonable under the circumstances.  If his threats of absconding with the child are legitimately backed up by evidence that he has the intent and means to do so, this would certainly be taken into account.  Perhaps he should have supervised visitation until he can demonstrate that he is acting responsibly in the best interests of the child.  Likewise, the verbal threats toward you should be considered, but unless it creates a real threat to the child, it will probably not be determinative in the visitation arrangement. 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.      ... Read More

Only the court has authority to change the date for a hearing. A party can make a motion to continue the matter or expedite the matter, but the ultimate decision rests with the court. A party can elect not to pursue a petition/motion prior to the court date. However, if you want your compromise to be entered as an order of the court, you can ask the GAL to document the agreement and prepare a consent order for all parties to endorse. The GAL is a party to the matter and can, if s/he does not believe the agreement is in the best interests of the minor child, object to the agreement. The above response has been provided for general guidance on matters of interest only and is not intended as a legal advice. No attorney-client relationship has been created between the reader of this response and The Law Office of Karen M. Holman, PLLC.  ... Read More

There is no hard and fast rule against you having your girlfriend move in with you, but it certainly will not do anything to help your case.  If the mother of your child is looking for ammunition to use against you, you are handing her some, but I'm not sure how far it will get her.  She may be able to make some moral objection about exposing the child to your relationship.  However, you could point out that your own child was born out of wedlock, so I'm not exactly sure what her moral objection would be.  If your girlfriend is a stable and positive influence in the child's life, then it would be difficult for the mother to use her against you.  I guess the worst potential outcome she could raise is that because you are not married, it could devastate the child if and when you break up.  But this is so speculative that I can't imagine a judge would let her raise it.  So the bottom line is that there could be factors raised on both sides relating to your girlfriend, but I think if your girlfriend comes to court and testifies so that the judge can see for himself that she is good person to be in your daughter's life, this can only help you. However, the idea that you will get a 50/50 custody arrangement is extremely unlikely.  Not because you are the father, but because when you take a custody case to court, the judge generally considers it his or her job to make a decision for one parent or the other to have primary physical custody.  It would be extremely rare to see a judge award a shared custody arrangement.  We usually see these schedules worked out through settlement between the parties out of court.  In court you can try for primary custody for yourself or to obtain as much visitation time as possible.  Or maybe you'll prove me wrong and get a shared arrangement.  If so, I'd like to hear about it. 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.  ... Read More

If your ex has been charged with contributing to the delinquency of your son, there may, depending on all the facts and circumstances, be sufficient criteria to show that there has been a material change in circumstances warranting a modification in the prior custody/visitation order. Once that has been established, any proposed modification to the prior order would be based on what is in your son's best interests. The above response has been provided for general guidance on matters of interest only and is not intended as a legal advice. No attorney-client relationship has been created between the reader of this response and The Law Office of Karen M. Holman, PLLC.  ... Read More

Unless your custody order has a provision preventing you from leaving the state, there is nothing legally stopping you from moving.  However, this will constitute a material change in circumstances that will give the father the right to petition the court for a change in custody.  He may also be prompted to file for custody of the younger children.  In addition, if the current court order allows regular visitation for the father, your moving away may interfere with his visitation rights.  You should not do anything that will put you in violation of the court order.  Otherwise you are free to do what you must and what you consider to be in the best interest of your children and let the chips fall where they may.  If you don't want to risk a custody battle, you should try to work it out ahead of time with the father and find an arrangement that he is happy with.  Relocation cases are among the most difficult because it is hard to find a solution that is fair to the non-custodial parent who is staying put. 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.  ... Read More

It is not uncommon for a custody/visitation order to include the following provision, "In all over-night visitations, suitable, reasonable sleeping and living accommodations will be provided the child." Dad should make sure that he provides what is "suitable and reasonable" to ensure his son's safety and comfort, in accordance with his age and developmental needs. The above response has been provided for general guidance on matters of interest only and is not intended as a legal advice. No attorney-client relationship has been created between the reader of this response and The Law Office of Karen M. Holman, PLLC.... Read More

It is unfortunate he is being this way, but he is entitled to demand strict adherence to the court order.  No attorney is going to tell you it is okay to disobey a court order.  If the vacation is scheduled during his visitation time, then your daughter will have to miss the trip.  It seems like the current schedule is really not working, in that the Wednesday overnights preclude any week-long trips.  Most visitation schedules will allow a week or two in the summer for each parent, to accommodate vacation trips.  You may want to consider petitioning the court to modify the schedule accordingly, if the father won't do so voluntarily.   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. ... Read More

You do not really have any legal standing in this situation.  If your husband parented a child outside of your marriage, he is the one who will be legally responsible for child support, if the mother chooses to seek it.  At that time, he will have the option to demand a paternity test.  He also has the right to seek visitation or even custody, if the child is his.  There is nothing you can do to force him to do any of these things, except to decide whether or not he is someone you want to remain married to.  You have no legal rights or responsibilities in regards to the child or the mother, because under the law you are not a party to the situation.  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. ... Read More

There are a number of factors the court must consider according to the Virginia Code in making a custody determination. Of course, every case is different, but you should see how the facts of your situation fit within the following elements of the statute to build the best presentation of your case.  Hiring a lawyer to represent you is a good idea in every case, in order to make sure your rights are protected, that your evidence is presented correctly and that the proper objections are made.  § 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. 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. ... Read More

A twelve year old  can't, on their own, petition the court or make a decision to move to Germany.  Only a parent can make that decision for a child.   A custodial parent is required to provide, at least, 30 days notice of an intended relocation.  A noncustodial parent can object to the relocation, and petition the court to "enjoin," or prevent, the relocation.  If the relocation is disputed, the custodial parent must show that the move  will not substantially impair the child's relationship with the other parent and that the move provides an independent benefit to the child - not necessarily the same as a benefit to the custodial parent. The above response has been provided for general guidance on matters of interest only and is not intended as a legal advice. No attorney-client relationship has been created between the reader of this response and The Law Office of Karen M. Holman, PLLC.  ... Read More

The mother's permission is not "required."  Many courts in the Commonwealth incorporate standard "Conditions and Restrictions of Custody and Visitation" as part of their custody/visitation orders.  One such condition prohibits parties from "openly cohabiting with any person to whom he or she is not lawfully married, in the presence of the child."  Mother could  file a contempt motion if that provision is in the current order and father moves in with his girlfriend.   This answer does not constitute legal advice, nor does it result in the formation of an attorney - client relationship.  ... Read More

If there is no existing custody order, then there is nothing legally preventing you from moving out of the area.  However, if you have established a routine schedule with the other parent, then any disruption to that status quo could give rise to an emergency motion for custody. Whether or not you will prevail depends on the best interest of the children.  You have to make the determination of what is best for your kids and always let that be your guide.  Just be prepared to defend your position.  It would probably be best to file a petition for custody at the same time.  The worst case scenario is that you are ordered to return the children to Virginia. 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. ... Read More

If there is no existing custody order in place, then there is nothing legally preventing you from leaving the state with the children.  But it may give rise to a custody battle here in Virginia.  Relocation cases are extremely difficult and the judges come out all over the place on them, making it very hard to advise people on what to do.  That is because every case is unique and is determined on a case by case basis.  You have to make decisions that are in the best interest of your children and that is ultimately what the court will be considering.  If you can show that it is in the children's best interest - not just yours - to move to Montana, then you may be able to keep custody of them there.  However, one of the factors in determining custody is the ability to foster a relationship between the children and the other parent.  If you move them to the other side of the country away from their father, this is obviously going to interfere with his relationship with them.  Your worst case scenario is that you are ordered to return the children to Virginia, but you would not be "in trouble" per se. 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. ... Read More

You cannot "give away" the parental rights of the other parent in the Commonwealth of Virginia. If you would like for your mother to be able to have legal custody of the child, the right to make legal decisions including "signing papers" as you indicate, you would have to go to court and be heard. You need to file a motion to amend custody. If you and the mother have an agreement that you are going to share legal custody of the child, you can present that agreement to the judge. However, you need to give the child's father notice of that proceeding and he is entitled to be heard. So if he objects, you will both have to present evidence as to why it is in the child's best interest for you and maternal grandmother to share legal custody of the child. For specific advise as to your situation, please consult an attorney in your area. This is presented for informational purposes only and does not create an attorney client relationship.... Read More

The issue of relocation is a real crapshoot.  We have seen many cases where the judge will take the children away from the party that moves away and give them to the party who stays put and we have seen other cases where the judge lets the children go with the parent who moves away, even when the other parent was actively involved in their lives and had regular visitation.  It is truly a case by case determination and depends largely on which judge you get and the facts of your particular case.  If have been living with the child in Michigan, while the other parent remained here in Virginia, then I don't really see how your moving to Utah constitutes an emergency.  But we would have to look at a lot more details of your situation to provide a better analysis and there is never any way of predicting with certainty what will happen in these cases.  You need to work with an experienced family law attorney to develop the best presentation of your case to ensure your rights and the best interest of the child are protected. 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. ... Read More