Virginia Family Legal Questions

Be very careful. Most courts will force the moving party to return the child(ren) to Virginia during the pendency of the suit. It is best to provide the other parent with notice that you are moving. All custody Orders are mandated to carry the provision "in the event that either party changes residences, they shall provide the other with 30 days advance written notice."... Read Answer

You are entitled to keep whomever you want out of your house, but the real question is how you are going to enforce that.  If your daughter lets him in when you are not there, then you will have to address that with her, it's not really a legal issue.  If the baby's father feels that he is being denied access to see his child, he could file a petition for custody or visitation with the court.  Because he does have parental rights in this regard, it would be best to work out some arrangement with him that you are comfortable with, such as supervised 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. ... Read Answer

It depends on what you are trying to do.  If you are trying to enforce an existing court order, you must start by going to the court in which the order was entered.  If you are trying to initiate a new case, it depends on whether the subject of the lawsuit is your children or support from the other party, etc. You would want to get a lawyer in whichever state the legal proceedings are held.  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 Answer

While cheating could have some affect on a custody case, it is certainly just one of dozens of factors, many of which will be much more important than the cheating issue.  Ages of kids and how much they know or witnesses of any cheating would make that factor have a little more affect on the case, but it is still only one factor that can easily be trumped by many many other factors in a custody case.  ... Read Answer

You could just stay there if you are on the contract.  I am not sure if that means you are on the title to the property (meaning you and ex-boyfriend own the place) or if it means you are a tenant on the contract with a landlord.  Either way, either a bank or the landlord would have to kick you out.  The boyfriend might sue you for your share of the rent if you are not paying and obligated to under the lease.  The landlord though can come after you or him or anyone on the lease, for all unpaid rent.  And the landlord only can evict you if you are on lease with landlord.      ... Read Answer

It is possible.  Depends on many many factors.  Very importantly, WHEN was the house purchased.  If after the marriage, it is marital.  You MAY be able to trace a part of it to separate funds used for down payment, and then to an extent it could be part marital part separate.  What also matters is how much equity is in the property to be divided.  Even if brought into the marriage, and even if kept titled separately, a home with a loan that is paid during the marriage creates a marital interest in the home, to the extent payments made during the marriage have added to current equity value. Also, courts often rule to "temporary" use of the house while divorce is pending, and this can be awarded even to the party not on the title who does not end up keeping the house in the end.... Read Answer

Based on the information provided, yes you are still required to pay child support.  In Virginia, both parties have a financial obligation to support their children. While relinquishing physical custody of the kids does not eliminate a child support obligation, termination of parental rights does end the obligation--and it also eliminates all rights to see the children.  ... Read Answer

You would obtain a copy of the Final Decree or Order, take it to the courthouse in the state where the parties now live (make sure in the correct city/county- probably in the Defendant/payor's home country but that might vary a little depending on exact type of case), file motion or petition to "register" the foreign Order, then move to enforce it per that State's procedures and laws to enforce.    ... Read Answer

Even though both of these assets are titled in your husband's name, if they were acquired during the marriage, they are almost certainly marital assets.  We would have to examine where any down payments came from, but any monthly payments coming from income earned by either of you during the marriage are presumably marital.  In a divorce, a judge can look at what contributions each of you made to the marriage, both monetary and nonmonetary, and then determine a fair division of the property.  He is right that it may be difficult to make him move out of the marital home.  However, it's possible for you to be granted exclusive use and possession of the home pursuant to a divorce.  This would force him out of the home.  But this remedy is often only implemented in cases involving domestic violence.  It is important for you to consult with an attorney to further discuss your rights and ensure you 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 Answer

If custody was ordered as a portion of your divorce decree, then North Carolina is the state where you need to start.  Jurisdiction in custody cases is pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).  North Carolina presently has jurisdiction of the matter due to the previously entered custody order. I am not familiar with North Carolina law, but in Virginia, all custody orders provide that a party must give thirty days written notice to both the Court and the other party prior to relocating.  This gives the non-relocating party an opportunity to be heard if the move is opposed. This information is provided for informational purposes only and does not constitute legal advice.  This information does not create an attorney-client privilege between the author and reader.    ... Read Answer

The safe deposit box held jointly should revert to the surviving owner upon the other's death.  It should not have to go through probate.  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 Answer

The basic premise of family law in Virginia is the best interest of the child. There is no hard and fast rule that any particular parent must provide any particular sleeping arrangements for the child. The circumstances will be evaluated in their totality. In a proceeding to alter the custodial arrangement for instance, to limit the non custodial parent's visitation, the sleeping arrangements will certainly be considered. Is the child sleeping on the couch in the living or on the basement floor? Is the child comfortable? Does the child have the appropriate amount of privacy for his or her age? Does the child share a bedroom with a sibling? Things like that will be considered. Just because a child does not have their own bedroom does not mean that the arrangement is not in the child's best interest. It may or may not be depending on all of the facts. It also depends on the purposes for which the question is being asked. Whether it is being asked for the purposes of determining custody, or whether you are asking if CPS would remove a child who does not have a separate bedroom. But ultimately, it is not black and white and it is not an automatic bar to custody without a showing that it is not in the best interest of the child.... Read Answer

It is true that failure to pay child support is similar to a criminal charge in the sense that it does carry up to twelve months of jail time (the same as a misdemeanor in the Commonwealth of Virginia). However, several things have to happen first. First, there has to be a final order for support in a specified amount. Which it sounds like there is in your case although that order has been appealed. But there also has to be a show cause filed against you by either the department of child support enforcement or the custodial parent. This is a motion filed with the court which requires you to present yourself to the court and "show cause" why you should not be imprisoned for failure to pay your court ordered support. If this motion is filed and set for a hearing, then you may have to worry about the possibility of jail time on that hearing date. But you will not be imprisoned for failure to pay support during a hearing on an appeal of the amount of support. Of course, the best way to avoid this is to pay your support. I would advise that you go back to the department of child support enforcement and insist that they accept your payment. Besides the threat of jail time, it is not in your best interest or your children's best interest for you to fall behind in support. ... Read Answer

You may be able to avoid the contract by claiming that you signed it under duress. There was mention in your inquiry of the word "abuse." You may need to show some form of evidence of the abuse. You will need to discuss this possibility with an attorney in your jurisdiction. Please remember that this post is provided for information purposes only and does not in itself create an attorney client relationship.... Read Answer

You provide a good reason for why a court may grant your name change request.  Pursuant to Virginia Code Section 8.01-217, a name change for a minor child shall be granted if it is determined to be in the best interest of that child.  You are not trying to eliminate her father's surname but are only attempting to update to your current last name.  This may be in the child's best interest.  However, on the flip side of the coin, the Court may be concerned about other factors, such as the length of your marriage, and the confusion that having her step-father's last name may also present (e.g. will people assume she is adopted or that your husband is her actual father, since many people may assume that the hyphenated portion of the name is your maiden name rather than her father's name). If her father does not agree to the name change, there must be a hearing to determine if it is in this child's best interest to change her name.  You bring up legitimate points as to why it may be in her best interest, but it is still a tough call.    ... Read Answer

If she has been there since April 2011, you most likely have to file the case where she is (unless there already is a current Custody/Visitation Order, in which case you can file to amend it wherever that Order comes from.  There is a uniform child jurisdiction law across all states that would determine the proper venue. Her leaving without your consent will be frowned upon by any Court, as would be the other things she is doing that you mentioned in your question, if you can prove them. I would not wait too long, because sleeping on your custodial rights could be viewed as accepting the status quo in a manner of speaking.  File for Custody and Visitation to be determined in Mom's home state/county, and ask for travel restrictions.   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 Answer

In order to change the name of a minor child, both parents must be in agreement.  If the natural father will not consent to the name change, you would have to have a hearing in court to demonstrate that it is in the child's best interest.  There could be reasons why the father would accept the child having your maiden name, but not the last name of another man.  The first step would be to talk with him about it and determine whether he will agree to it or not.  If not, then you have to decide how important it is to you and how much you are willing to fight him for it.   Changing the child's name has no effect on the parental rights of the father.  Termination of parental rights is a much more complicated matter that is only granted in extreme situations, such as severe child abuse or neglect.    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 Answer

Is the money owed for a child or spousal support arrearage?  If so, your ex-wife's cashing of the check does not constitute an acceptance of your proposed payment plan, but it will be credited to you for calculation purposes.  If you are attempting to create an "agreement" for an amount of child or spousal support, prior to any orders being entered by the court, cashing the check will also not create a payment plan but you will receive a credit for retroactive payments.           This material is provided for informational purposes only and does not constitute legal advice.  This information does not create an attorney-client relationship between author and reader.  ... Read Answer

Your sister certainly has standing to bring such a case. Her chances of success would be determined by many, many considerations.  Certainly the exact langauge of the current order would have a big say in it, to determine what her basic current rights are.  She would have to file to amend that order.  What she did to put her in jail would be a huge factor, as well as her relationship with the child prior to going to jail, and the child's current relationship with the current primary custodian also would be amongst some of the most relevant factors.  The basic determination the court will look at in deciding who to give custody to, and what visitation anyone else should have, is the best interests of the child, with a basic assumption that having a former parent involved again in the child's life is generally something to support in some way.  If there happens to also be an order terminating parental rights, restoring those can be much much more difficult. 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 Answer

As between the two parents the courts in Virginia will make a determination as to which custodial placement is in the best interest of the child. All factors relevant to the child's health and welfare will typically be considered. However, no one factor will be outcome determinative. Which means that the factors will be considered as a whole, but there will be no one factor that will make the court find against one party or in favor of another. Not having running water will certainly be a factor that court would be willing to consider in a proceeding to determine custody. But depending on all the other factors to consider, it may not necessarily mean that party will lose custody. I would advise that you seek counsel from an attorney in your area to discuss your situation in more detail and receive more specific legal advice. This information is provided for informational purposes only and does not create an attorney client relationship.... Read Answer

There is no particular Rule of the Virginia Supreme Court that applies to domestic relations cases.  Rule 3:25 provides for attorney's fees in most civil cases; however, domestic relations cases are an exception.  Rule 4, which pertains to discovery matters, does apply in family law matters, so one may seek attorney's fees utilizing Rule 4 if the other side is not complying with a discovery request.  If the case is not a divorce and is brought in the Juvenile and Domestic Relations District Court, Virginia Code Section 16.1-278.19 applies, which looks at the parties' "relative financial ability" to pay attorney's fees when determining whether fees should be awarded.  While this Code section is not applicable in the circuit court, in many equitable distribution cases the court does review the relative financial positions of the parties to determine whether attorney's fees should be awarded.  In other matters, such as custody and support, the court may consider attorney's fees when a  party is taking an unreasonable position.  Attorney's fees in most domestic relations matters are discretionary.       This material is provided for informational purposes only and does not constitute legal advice.  This information does not create an attorney-client relationship between author and reader.   ... Read Answer

As the custodial parent, your only obligation is to make the child available for scheduled visitation.  In cases where parents cannot work out the details, it is often spelled out in the court order who is responsible for transportation.  If could be either parent, depending on the circumstances.  I think you make very good points that he is the one who moved away and created the transportation problem.  Either of you could file a motion with the court to determine this issue, if you cannot resolve it yourselves.  Until then, I would think that you are abiding by the court order by making the child available for visitation and if he wants to come pick him up, that is up to him.  However, if this becomes burdensome for you because he fails to pick up the child and you cannot plan accordingly, then you may want to take it to the court yourself to get this resolved.   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 Answer