Domestic Violence Or Child Abuse And Its Impact On Child Custody
How does the family court handle child abuse allegations?
Perhaps not surprisingly, a parent with a history of domestic violence or child abuse is going to face an uphill battle in seeking joint legal and joint physical custody. Virginia Code 20-124.3 requires a Court to consider past acts of family abuse when determining custody and visitation and experienced Northern Virginia Family Law Lawyers know that allegations of abuse can sometimes overshadow all of the other factors. For example, the best interest statute specifically connects the family abuse factor with factor relating to one parent encouraging the childs relationship with the other.
Here are some things to consider when dealing with a custody and visitation case that involves allegations of abuse:
Whether you are a parent who has been accused of abusing your child or you are a parent who believes your child has been the victim of child abuse, it is important to seek the advice of an experienced Virginia Family Law Attorney. When it comes to allegations of abuse, the stakes can be quite high.
Family courts take child abuse allegations very seriously and so should you.
What Evidence Do I Need To Prove An Unfit Parent In Virginia
If a parent is trying to establish that their spouse or ex-spouse is an unfit parent in court, they need to provide evidence to prove their allegations. Some examples of evidence that they can present in court are the following:
- Testimony from witnesses about the parents behavior
- Videos of incidents relating to the factors enumerated above
- Physical evidence of abuse or neglect
- Documents or files that support the allegations
It can be challenging to find evidence, but if you think you might have something, its worth bringing forward to your lawyer. All evidence must be gathered before a request to change custody is filed.
Appointing A Guardian Ad Litem
How does the court appoint a lawyer for the children?The Court has the discretion to appoint a lawyer for the child in certain custody cases
Back to the best interest standard, if the court determines that a lawyer should be appointed for the child or children, Virginia child custody statutes give the court the discretion to make that order.
We see such appointments in cases where there are allegations of abuse or a child has a strong preference that cannot be introduced to the Court in another way. If a court believes the parents lawyers cannot adequately set forth a childs position, a guardian may be appointed.
Distinguishing between a Guardia Ad Litem and a custody evaluator is important. A Guardian Ad Litem is not in a position to do a psychological assessment of the situation and give a recommendation to the court based on such analysis. The lawyer appointed for the child is more of an investigator of the facts to determine how serious the issues are and what, if any, changes need to take place to the status quo custody and visitation arrangement. Importantly, a Guardian is not a witness and cannot be asked to testify.
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When Facing A Divorce Or The Dissolution Of A Relationship That Involves Children You May Be Wondering How It Will Affect Your Role As A Parent And Asking Such Questions As:
There is no universal answer to any of these questions. For example, many people assume that mom should have primary custody of the children if she has been the primary caregiver however, such decision may not be warranted if dad has also been involved and a willing caregiver for the children.
When making a custody and visitation determination in your familys situation, the court will look at several factors, but is guided by one standard: the best interest of the child.
- Where will the children live?
- Can we share custody?
- What does shared custody mean?
- What does sole custody mean?
- Who will be the primary caregiver for the children?
- How will the childrens schools be decided?
- Will I only get to see my children every other weekend?
- Will I still get to make decisions about my childs life?
Legal And Physical Custody
Understanding what legal and physical custody mean under Virginia law is an important part of your preparation.
Legal custody refers to a parents ability to make legal decisions on behalf of his or her child. Joint legal custody in Virginia means parents must share the decision-making regarding matters involving the childs health, safety, education and welfare. Think of joint legal custody as a mandate to communicate and co-parent. The idea is to ensure neither parent makes decisions that are important in a childs life without involving the other parent. This includes decisions regarding health and medical treatment, education, extracurricular activities, and anything that is of significance to the child. Even attendance at religious activities can be covered under a joint legal custody order.
Joint legal custody, however, does not necessarily mean that parents must agree on all matters relating to the children often, even after consulting and conferring with one another, parents will disagree. Nor does it mean that mutual consent is always required to move forward with an activity for the children . Where disagreements exist, parents are left to compromise or seek the assistance of a third-party .
Virginias public policy mandates frequent and continuing contact with both parents in most child custody cases
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Can A Parent Who Does Not Have Custody Have Access To The Child’s Records
Generally, either parent can have access to the minor childs academic or health records, unless a court decides there is good cause to deny a parent access to those records.1 A history of family abuse may qualify as good cause.2
In addition, the childs doctor, clinical psychologist, or clinical social worker can deny a parents request to see the childs health records if s/he feels that there is a good chance the child or another person will be substantially harmed by allowing that parent to see the records. The parent who is denied access can have this decision reviewed and possibly overturned by another doctor, clinical psychologist, or clinical social worker with similar training and experience at his/her own expense.3
1 Va. Code § 20-124.6
If Both Parents Share Custody Does Anyone Pay Child Support
Child support is determined based upon a specific formula taking into consideration both parents incomes, the number of children, any support paid by a parent for a child from another marriage, work-related childcare costs, health insurance costs for the children, and the number of days the non-custodial parent has with the children. The guideline child support is presumptively correct, but the court is given discretion to increase or decrease the amount of support depending on certain circumstances.
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Who May Seek Custody Or Visitation
According to the Code of Virginia §20-124.2, the court shall give due regard to the primacy of the parent-child relationship but may award custody to any other person with a legitimate interest in the child. Someone may show a legitimate interest in the child through a showing by clear and convincing evidence that the best interest of the child would be served by awarding custody or visitation to the non-parent.
How Will A Judge Make A Decision About Custody
A judge will make a decision about custody based on what s/he thinks is in your childs best interest.1 The judge will look at any factor that s/he thinks is important in making this decision. Some of the things a judge will look at include:
- the age and physical and mental condition of the child
- the age and physical and mental condition of each parent
- the relationship existing between each parent and each child, and the ability of each parent to meet the emotional and physical needs of the child
- the needs of the child, including other important relationships in the childs life such as siblings, friends and other family relatives
- the role that each parent has played in the childs life, and the role each parent will play in the future
- the likelihood that a parent will actively support the childs relationship with the other parent, which includes looking at whether a parent has denied the other parent access to the child in the past, without good reason for doing so
- Note: This factor might not be considered if there is a history of family abuse, sexual abuse, child abuse, or an act of violence, force, or threat that has taken place within the past ten years
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Do I Need A Lawyer To File For Support
You don’t necessarily need a lawyer to file for child support or spousal support. You may represent yourself. However, you should bring all documents available to prove your financial position, including pay stubs, copies of medical bills, copies of income tax returns, etc.
If you have questions about child support, you can contact DCSE at 800-468-8894.
Can A Judge Order Supervised Visitation Or No Visitation
Virginia favors custody and visitation arrangements that keep both parents involved in the lives of their children. However, supervised visitation may be ordered if the non-custodial parent has acted inappropriately with the child or placed the child in a dangerous situation. One specific situation where no visitation may be awarded is where a parent or a person residing with that parent has been convicted of a felony sexual offense involving a child victim. You should consult with an attorney to discuss the specific facts in your case.
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Custody Statistics In Virginia: The Children And The Numbers
Virginias divorce records and statistics are spotty, at best, so we again have to extrapolate from the national Census. Nationally, just under half of all custodial parents had legal or informal child support agreements, though custodial mothers were far more likely to have these than custodial fathers .
In Virginia this means that, in 2013, most of the approximately 2,223 fathers with sole custody struggled to maintain their childrens standard of living without any support from their ex-wives.
Whether from excessive pride, poor legal representation or fabulous wealth, most Virginia fathers with sole custody are paying nearly all costs of raising their children. If you happen to be one of those Virginia fathers with neither excessive pride nor fabulous wealth, you need to protect yourselfand your childrens quality of lifeby retaining a good lawyer.
The Firm for Men can provide Virginia men with excellent legal representation based on years of experience serving men only. Our attorneys will keep the best interests of children and fathers in mind, and work hard to protect your rights. Contact the Firm for Mens Virginia Beach office today to schedule a consultation. Weve been serving all of Hampton Roads for over a decade!
http://www.vdh.virginia.gov/HealthStats/documents/2010/pdfs/DivCC13.pdf
What Is Mediation And Who Pays For It
Mediation is a process where both parents will meet to try to come to an agreement on how to divide up custody and visitation, without leaving the decision to the judge. A third party who is neutral, generally called a mediator, meets with the parents to help them reach an agreement.
Virginia law states that in all appropriate cases, the court should order that parents go through mediation before seeing a judge.1 However, if there is a history of family abuse, you can ask the court to skip the mediation process, and go straight to a hearing in front of a judge.2
The goals of mediation include coming up with a schedule of when the child will see each parent, and figuring out how any disagreements between the parents will be handled in the future.3 You do not have to agree to anything you are not comfortable with or do not want. If an agreement cannot be reached, a hearing will be scheduled in front of a judge.
You will not have to pay for mediation in any custody, support or visitation case. It is paid for by the state.2
1 Va. Code §§ 20-124.4 20-124.22 Va. Code § 20-124.4
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What If We Cannot Agree On A Custody Arrangement
If the parties cannot agree on a custody arrangement for their children, the parties may be ordered to attend mediation or may choose to go to mediation. If the parties cannot agree and/or mediation is unsuccessful, the court will make a custody order after a formal court hearing in which both sides will be allowed to present testimony and evidence.
What Is A Parenting Plan And Do I Need One
A parenting plan is a document that helps parents who are not living together in setting forth their custody and visitation schedule, the decision-making rights and responsibilities of each parent, how disputes will be resolved, and how the expenses of the child will be paid. In Virginia, you are not required to propose or have a parenting plan. If you and the other parent cannot agree on issues related to custody and visitation, the judge will resolve these issues.
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Legal V Physical Custody
The Code of Virginia § 20-124.1 defines both legal and physical custody. Legal custody is the authority to make decisions relating to the care and control of the child. Decisions a parent with legal custody could resolve are, for example, education and medical care. Physical custody is physical and custodial care of the child. This basically means that the child lives with the parent who has physical custody.
Will My Child Need To Appear In Court
Generally, in non-contested cases, where the parties have settled and agreed to all of the issues related to custody and visitation, there will be no need for the child to appear in court.
However, if the case is contested on issues concerning the child, there are situations where it may be necessary for your child to testify in court. You should consult with an attorney to discuss the specific facts of your case.
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Should I Start A Court Case To Ask For Supervised Visitation
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request .
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
The Easiest Way To Make A Sole Custody Agreement
Creating a custody agreement on your own can feel overwhelming. You have to be sure to use airtight legal language and can’t omit any required information.
Use technology to take the guesswork out of the equation. The Custody X Change app walks you through each step of creating a comprehensive custody agreement.
You can include a visitation calendar for the noncustodial parent, plus parenting stipulations, such as forbidding alcohol consumption during visits.
The result is a professional document that demonstrates your competence as a parent and secures your child’s future.
The easiest, most reliable way to make a custody agreement is with Custody X Change.
Custody X Change is software that creates parenting plans for custody agreements.
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When Will Child Custody Be Decided
Custody of the parties children will be decided by the court based on what is in the best interests of the children. If the parties agree to a custody arrangement, the court must still make its own determination as to whether the arrangement is appropriate and in the best interests of the children.
If there is no agreement on custody, the court will make a determination after a formal court hearing in which both sides will be allowed to present testimony and evidence.
You May Be Wondering Why On Earth Would I Ask For Visitation I Dont Want Visitation I Want Custody
Its a fair question. You ask for visitation because the judge only has authority to grant things that have been formally asked of the court. If, for some reason, you lose on your argument for custody, youll want to be able to follow back up with a request for visitation. If you dont ask for it, you cant get itand then a bad situation is even worse.
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