This is the final list of custody and visitation considerations. We’ll move on to other topics, I promise. Before I do, however, I wanted to offer a special thanks to David S. Goldberg, Esquire in Maryland. He is an extremely knowledgable family law attorney and much of this list is drawn from his thoughts on these matters as shared on the listserv he created.
Accessibility to Extended Family
Where are the grandparents, aunts, uncles, cousins?
Historical involvement of extended family members
Attitude of Each Parent Regarding Visitation
Who is more likely to allow child continued contact with other parent?
Has a party interfered with visitation with the child?
History of visitation disputes
Telephonic, text, email, web-cam visitation
The Age and Sex of Each Child
Number of children
Level of maturity
Stability and Mental Health of Each Child
Willingness to recognize special needs of child
Special needs of child
How can each parent meet special needs
Munchhausen’s by proxy?
Preservation of Status-Quo
What are the present living arrangement?
How was living arrangement created, e.g., agreement, court order, desertion by one party, etc.
Each Parent’s Plans for Day-to-Day Child Care
Child care arrangements (babysitters)
Daily living pattern (work hours)
Distance from home/school in event of illness
Each Parents Goals and Values for the child
Involvement in civic activities, charities, etc.
Potentiality of Maintaining Natural Family Relations
With brothers & sisters (split custody)
How far apart will the parents be living from each other?
Does parent insure that children buy gifts, cards, for child to give to other parent for his/her birthday, Valentine’s Day, Christmas?
Prior Voluntary Abandonment or Surrender
Did parent leave without children?
How often does he/she visit/contact children?
Which Parent Is Best Able to Meet Non- Financial
Special Needs of Children
Professional Opinions re: Custody
To whom is the child most “bonded” psychologically?
Is parent emotionally dependent on the child?
Is child emotionally dependent on the parent?
Previously, I posted questions about parent “fitness” and past parent involvement. Today, I have questions about parent/child relationships, child’s preference, living environment, support systems and lifestyle. As I mentioned at outset of this series, a custody or visitation dispute may involve some, none or all of these considerations. In making those decisions, the court must defer to the Best Interests of the Child Statute (previously posted). These questions are aimed at eliciting information from a parent that a court might find useful in making that determination.
Does the child confide in the parent?
Does the child respect the parent?
Does the parent respect the child?
What is the level and extent of communication between parent and child?
How does the child react to discipline from the parent?
How old is the child?
How mature is the child?
Can the child accurately assess what is in his/her best interests?
Has the child been pressured into a “preference”?
To whom and under what circumstances has the preference been expressed?
What is the basis for the child’s preference?
Home, School & Community Environment
Can the child continue in school activities where he/she will be living?
Are there kids their age in the community?
Will school or parents be able to meet special needs?
Is child involved in clubs, activities, etc?
Is location of home suitable for children?
What is location of school child will attend?
Any concerns for safety of the child in the neighborhood or at school?
Availability of Support Systems of Each Parent
New spouse and step-children
Other family members
Mental health professionals
Child care providers
The Lifestyle of Each Parent
Occupation and work habits of parent
Involvement in the community
Involvement in church
Excessive use of alcohol, drugs
Responsibility (how were decisions made during the marriage)
Social life (hours kept)
Exposure of child to new romantic interests.
Cleanliness of home
After fitness of the parents, naturally, the court will want to look at what each parent has actually done with the children. Here are some common questions that might help establish what duties each parent has relating to the child.
Who shops for food, cooks, cleans, does laundry?
Who makes and takes child to dental and medical appointments?
Who transports the child to school, activities, etc.?
Who attends school and extra-curricular activities?
Who bathes the child?
Who puts child to bed?
Who reads to the child?
Who assists with homework?
Who takes the child shopping for clothing?
Who disciplines the child?
Who participates in religious activities with the child?
Who takes care of the home?
During my hiatus, a number of readers requested additional information on child custody. Particularly popular were inquires about what specific things judges tend to look into when deciding custody and visitation. The unfortunate answer is: different judges like/dislike different things. In Virginia, all custody decisions are governed by the “best interests of the child” statute. That statute appears under the “Family Law” tab on this site. It lists a number of factors for a judge to consider, but translating those factors into everyday terms can sometimes be tough. So, for the next few posts, I’ll go through some of them, flush them out and offer you my take on things to consider. I won’t (and can’t) be exhaustive, but I hope I’ll give you a good start on thinigs to think about.
Though all of the factors are imporant, perhaps the most important is “fitness” of a parent. Thankfully, this has almost nothing to do with physical fitness. Instead, this factor looks at the things a parent does and how they relate to the child.
Things to avoid:
Legal custody is the right to make “legal decisions” on behalf of a child. Typically, these decisions are made in important areas such as medical care, education and religious training. Legal custody may be joint or sole. If parents have been awarded joint legal custody, decisions must be shared unless otherwise ordered by the Court.
What is the definition of physical custody?
Physical custody is the right to the child’s presence. It refers to where a child lives and who has responsibility for supervising the child at a specific time. Physical custody is often referred to as “visitation.”
Does the mother always win sole physical and legal custody?
No, there is no presumption in favor of granting custody to the mother.
How does a court decide which parent will get custody of a child?
The court decides all matters of custody and visitation by considering the child’s “best interest.” In this case, the child’s best interest refers to a set of statutory factors that a court must consider, including:
The court will hear evidence supplied by the parties and may refer the case for a custody evaluation. At times, a psychologist, family therapist, counselor or child development specialist may be employed to assist the parties in determining the child’s needs.
What are the rights of grandparents to visit grandchildren?
How may a grandparent gain custody of her grandchildren?
The court may grant reasonable visitation or custody to grandparents if it is determined to be in the child’s best interests. Grandparents seeking visitation must give notice to both parents. Generally, grandparent visitation will not be ordered if it conflicts with the rights of custody or visitation of the birth parents.
What about spousal or child abuse protective orders?
Protective orders, also referred to as restraining orders, can dramatically impact both a divorce and child custody action. An abused spouse may seek a civil and/or criminal protective order, which, among other things, may provide temporary child custody and support, and sole use of the marital residence.
What is the role of mediation in a custody/visitation disputes?
Mediation may prove to be a useful and economically alternative to contested child custody and visitation litigation. In mediation, a neutral third party assists the parties in reaching an agreement with minimal or no lawyer involvement.
What is the role of collaborative law in a custody/visitation?
Collaborative law is a relatively new model of dispute resolution. Unlike mediation, each party retains an attorney whose sole role is to aid the parties in a negotiation and settling of the issues. Both parties sign an agreement to provide information and documents. If either party decides to take the other to court, their collaborative law attorneys will not represent them and each party then must retain a litigation attorney. The benefit of a collaborative law resolution is that each party is assisted and advised by counsel at all times and is required to have legal counsel to participate.
Jason A. Weis, Esquire – Curran|Moher P.C. – firstname.lastname@example.org – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020
Happy belated holidays and best wishes for the New Year!
Family law firms invariably see an uptick in business both before and after the holidays. Holidays for separated parents are never easy. Often the pressure to make them memorable in a positive way makes the days themselves less than enjoyable.
For those contemplating separation or who are in the midst of divorce, a bit of forethought may make the holidays somewhat less frustrating. Consider the following language that commonly appears in visitation agreements: “[t]he parties shall equally divide all of the major holidays; the parties shall work together to determine the actual times of each party’s visitation on the holidays.” Such provisions work great while the parties are “playing nice” with one another, but become near meaningless when the parties no longer see eye-to-eye. What constitutes a “major holiday?” At what time do the holidays begin and end? How will transportation work? What if one party wants to travel during the holiday?
In most cases it makes sense to be as detailed as possible when dealing with the holidays. Details help each party manage his or her expectations. Consider the following alternative language: “[u]nless the parties otherwise agree, Thanksgiving shall be from school dismissal for the holiday through 6:00 p.m. on the Sunday following the holiday. Mother shall have the child for Thanksgiving on even-numbered years and Father shall have the child for Thanksgiving on odd-numbered years. The party exercising holiday visitation shall be responsible for picking up the child from school and returning the child at the conclusion of the holiday visitation where necessary.” In this example, each party knows his/her obligations and can plan accordingly. They have a default schedule but can vary it by agreement as necessary each year.
An additional benefit of defining each holiday is that it offers the parties an opportunity to capture individually significant days. For example, a father who appreciates his spouse’s meaningful tradition on Easter may be willing to forego visitation on Easter (particularly when he doesn’t feel strongly about that holiday) in exchange for his spouse’s agreement to honor his tradition of taking the children to his parent’s lake house for the Fourth of July. In this way, on balance, the children benefit from exercising visitation with the parent who is most interested in making the holiday special.
If you would like to discuss the various ways parties deal with the holidays during separation, divorce and afterwards, please feel free to give me a call.
Psychologists at Eastern Virginia Medical School have recently found that new mothers are not alone in being susceptible to depression following child birth. Psychologists concluded that fathers suffer from postpartum depression at nearly the same rate as mothers. The study involved the review of 43 separate studies of some 28,000 fathers in the U.S. and other developed countries. During the first year of fatherhood, the rates of depressed fathers were quite high: 25% of American men exhibited signs of postpartum depression during the first three to six months after child birth and 14% continued exhibiting signs after one year.
Sleep deprivation, a decline in sexual intimacy and the stress of juggling work and new home responsibilities likely contributed to these negative feelings, researchers tell The Los Angeles Times. “We are expecting dads to be more involved in parenting than we ever have before,” said University of California at Berkeley researcher Will Courtenay, a psychotherapist who studies paternal depression. “Most dads are welcoming that, but they don’t have any models about what a dad is supposed to do. That creates uncertainty, and that uncertainty can lead to anxiety and depression.”
As the parenting role of fathers continues to evolve, many men are concerned about unfair stereotypes relating to child custody and visitation. In the 1986 case of Viskides v. Derr, the Virginia Court of Appeals put to rest the “tender years presumption,” which held that a mother should be given preference in custody cases involving young children. The law governing child custody and visitation now clearly provides that “[a]s between the parents, there shall be no presumption or inference of law in favor of either.” Though reasonable minds may disagree about whether such presumptions persist, the court must consider the “best interests” of the child as determined by consideration of no less than ten separate factors. Those factors include the age, physical and mental condition of the child and parents, the relationship existing between each parent and the child, the needs of the child, the role each parent has played in the upbringing of the child, the propensity of each parent to support the child’s contact with the other, the reasonable preference of the child and instances of family abuse. Fathers (and mothers for that matter) would be well served by examining those factors and marshalling what information they may have relating to those factors as opposed to worrying about traditional parenting roles. If you would like more information about these factors and how courts analyze them, feel free to give me a call.
A recent article written by Jenni Russell of The Guardian reported that “[w]hat was once an admirable push for laws to protect children from pedophiles has metastasized out of control, until now we inhabit ‘a world in which contact with children is increasingly regulated by officials and the state.’” The article cited as an example a mother who politely asked another 5-year-old to stop hitting her son and was then promptly reprimanded for violating a school rule mandating no unauthorized adult – not even a parent – could remonstrate a child.
Every parent has a First Amendment right under the U.S. Constitution to direct the upbringing of his/her child and discipline often plays an important role in that upbringing. In Virginia, a parent may physically discipline his/her child provided the discipline does not exceed “due moderation” or serve as a mere excuse to physically abuse the child. “Due moderation” is a subjective concept. Whether due moderation was exceed typically turns on such factors as the marks and bruises left on the child, the age, size and conduct of the child, and the means used to discipline the child. Parents should keep in mind that due moderation will be determined by a third-party; parents who exercise unusual methods of discipline for cultural or religious reasons must be particularly sensitive to how their practices may be viewed by others.
If you have questions about this or any other regard, feel free to drop me a line.
ABCnews.com has reported an interesting study of high school and college students, built upon data from tens of thousands of psychological surveys in use since 1938, that concludes depression, anxiety and other mental-health issues are far more prevalent among today’s youth than they were during the Great Depression. In fact, five times as many students in 2007 reported signs of mental illness than did those in 1938. Some researchers speculate that today’s emphasis on wealth and appearance places an overwhelming pressure on young adults to be “hot” and “live large,” while others propose overprotective parenting keeps kids from developing independence and coping skills. Jean Twenge, psychologist and lead author of the study, hypothesizes that a focus on material things has replaced a focus on relationships.
Adding to a young child’s burden by requiring him/her to testify in a contested divorce proceeding is not a matter to lightly undertaken by a parent. Virginia Code Section 20-107.2(7) requires, as a factor for determining the best interests of a child, that “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…” be considered. There is no precise age at which a child is deemed to have reached the “age of discretion;” the statute effectively provides a sliding scale whereby a judge can exercise discretion in determining whether a child is competent to testify and how much weight, if any, the testimony should be given.
As a general rule, the older a child gets, the more likely it is that the child’s preference will play a significant role. Of course, there are always exceptions. For example, teenagers are typically considered to have reached the “age of discretion,” but if a teenager’s conduct reflects a lack of maturity and understanding (e.g. the teenage has legal or academic problems, or prefers to reside with one parent merely because that parent is less strict) the testimony may be heard, but given little weight. As another example, children below the age of 12 are typically not considered to have reached the age of discretion, but reported cases exist finding particularly mature and experienced children as young as 7 and 8 years old competent to testify.
There are several alternative mechanisms by which a child’s preference may be communicated to the Court without his/her direct testimony. Moreover, there are avenues for presenting a child’s preference to a Court that minimize his/her stress level. If you have questions about this topic or in any other regard, feel free to drop me a line.
My experience and background reflect the hallmarks of success one must demand of a lawyer in Northern Virginia's legal landscape. As a native of this area, I have here focused my practice on providing sound and balanced representation to clients navigating the difficult legal waters of family law, including contested divorce, custody, visitation, spousal and child support, and equitable distribution. More >>>
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Thank you for taking the time to read this blog. I hope you find the information here as enjoyable to read as I find to write. Please note that reading this blog does not create a legal relationship between you and Jason A. Weis, Esquire or any other attorney associated with familylawva.com. Moreover, all postings on this blog are merely attorneys' commentary on the state of family law in the Commonwealth of Virginia. THE POSTINGS ARE NOT LEGAL ADVICE – if you have a legal issue or question, I strongly encourage you to contact a lawyer. I would be pleased to refer you to someone if I am able.