Virginia Divorce Law: How to Discuss Divorce With Your Children

Divorce is an emotional process for the entire family. If you have children above the age of ten (10), they likely know that the process is starting or have a feeling that something in the marriage has changed. Many parents come to me and ask how to talk to their children about an impending divorce.

Generally, the answer to this question is simple; don’t talk to your children about divorce. This article is going to address why it is a bad idea to talk directly to your children about divorce, and what some alternatives are to make sure they are protected.

Why You Should Not Talk to Your Children About Divorce

There are several reasons why it is a bad decision to talk to your children about divorce. The first reason it is a bad idea is because the Court may view talking with your children as an attempt to alienate them from the other parent. If you are trying to discuss what their choices are in terms of where they can reside, you are likely to get punished by the Court. Courts take custody issues very seriously, and they do not want any appearance that a parent is interfering with the process.

The second reason it is a bad idea to talk to your children about divorce is that inartfully talking to them may lead to some degree of psychological or emotional trauma. Child sometimes feel that a divorce can be their fault, and by talking to them about the divorce ahead of time you may be placing emotional stress on them.

How Should You Help Your Children Cope With Divorce?

Instead of talking to your children about the divorce, you should look into therapeutic services for the children. Therapeutic services have several benefits.

The first is that they can help your children work through any emotional trouble they may have as a result of any family dysfunction. As the children learn about the divorce process through their Guardian ad Litem or the fact that they are going to separate households, the therapist can be there to help them work through any associated anxiety.

The second benefit of a therapist is that they can prove to be invaluable resources in a contested custody matter. Therapists are experts, and their opinions about the impact of their relationships with their parents may be informative as to where the children should reside.

Finally, the most important aspect is that a therapist can help avoid having the children testify directly. Testifying in court can be a traumatic experience for children. A therapist can offer opinions about custody and visitation without forcing the children to choose a side.

Why You Should Hire a Lawyer Before Filing For Divorce

A good lawyer is well connected with the local service providers. Part of a lawyer’s job is connecting children with the resources they need. A lawyer can help you identify which therapeutic services are best for your children, and which ones the judges respect.

Virginia Divorce Law: What Does a Court do in a Divorce Case?

One of the most important things that people looking into a divorce often don’t know going in is what a court is doing in a divorce case. It is important to understand the basics of what goes into a divorce case before going to see a lawyer. That way, you can start getting information together that your lawyer may need in order to help you with your divorce case.

So what are the two major things that a Virginia court deals with in a divorce, and what should you prepare to help your lawyer and to save time?

Virginia Divorce Courts Decide Issues Related to Children

If you and your spouse have children together, one of the major things that a Virginia court has to deal with is how to handle who takes care of the children and how the costs of raising children is shared. These concepts are known as custody, visitation and child support.

There are two different types of custody; legal custody and physical custody. I discuss the major categories inside each of these types of custody in other articles. Legal custody, simply put, is how decisions are made for health treatment and schooling. Physical custody, simply put, is where the children are primarily living. Visitation deals with how often the “non-custodial parent” gets to the see the children.

Child support is simply the amount of money that Virginia law says a child needs to receive from their parents in order to thrive. There are many different ways to calculate child support depending on a lot of different factors.

Virginia Divorce Courts Decide Issues Related to Debt and Money

The other major area that a Virginia court has to deal with in a divorce is money and assets. Throughout your marriage, you and your spouse acquired things that were worth a lot of money. It is also likely that you acquired debt as well.

Virginia courts need to determine how best to divide debt and money. There are also a lot of factors that go into dividing debt and assets. I discuss these factors in a different post.

What You Should Prepare for your Divorce Lawyer

The best way to save time and money before meeting with your lawyer is to create an outline out of how you believe these two areas should be dealt with. For example, you should create a plan on where the children will be living and how often the other parent gets to see the children. This includes holidays and summer. Also think about what schools you want your children going to and if you have any objections to certain types of medical treatment.

You should also have a list of all the assets and debt that you have that was acquired during the marriage. It may be a good idea to identify a proposed way of dividing these things including who you believe should get certain items and who should take on certain debt. These lists are helpful to lawyers, as it tells them what your ideal outcome is.

Child Custody: How to Modify an Order

The purpose of a child custody order is to maximize the amount of time each parent spends with their children and to encourage the personal and academic growth of the children. As children get older, their needs and schedules change. Parents also get new jobs and change houses. Whenever there are significant changes in you or your children’s lifestyle this can create the need for modifying your child custody order.

So, how are child custody orders modified?

Material Change in Circumstances

Before a child custody order can be modified, there must be a “material change in circumstances.” Virginia law requires that the lifestyle change that has happened must be directly related to the wellbeing of the children, and must be a significant change. Courts are unlikely to change a custody order over smaller changes such as a rescheduling of one extracurricular activity.

A common example of a material change in circumstance is a move or an intended move by one of the parents. Changing houses can have a significant impact on your children’s schedules. The move may result in longer commuting times, less time at home for one of the parents, and an increased burden on the non-custodial parent.

Another common example is a job change by one of the parents. If one parent takes on extra shifts at work, this may result in less time spent with the children. Courts are always looking to maximize time with both parents. Therefore, if one parent is unavailable, then the custody may shift to the other parent.

With respect to the children, the most common example of a material change in circumstance is age. As children grow older, they go to different schools and take on more extracurricular activities. The parent that is in a better position to encourage that personal growth for the children is a better candidate for custody.

Best Interest Factors

As with the initial custody decision, the Court will look at the same factors as before. The chief concern in a modification proceeding is the best interests of the children. As such, the Court looks at information including the best education for the children, extracurriculars and any other factors that will help the children mature.

Timeline for Modification

Every court is different. Some courts have more cases than others. However, most modification cases can take between two (2) months and one (1) year depending on how busy your particular court is.

How a Lawyer Can Help You

A lawyer is able to help you prepare your case for the Court. Custody proceedings are emotional, and it is hard to explain your story in a way that the judges are able to appreciate. A lawyers is also able to ensure the attendance of your witnesses and prepare you for what not to say to the Court. Finally, a lawyer can make sure you file all the necessary paperwork.

VIRGINIA: Controversy over Guardian ad Litems

The Study

People are not happy with Guardian ad Litems ("GALs").  There have been several studies conducted in the last few years of various social service professionals regarding their attitudes to GALs.

The most recent survey that created controversy was a poll of three hundred (300) Court Appointed Special Advocates (“CASAs”). CASAs are non-lawyers who volunteer their time to talk with children during court proceedings. CASA volunteers are important, because they provide emotional support for children. 

The survey results were not good:

1. Ninety (90) percent feel that GALs are not performing their job.

2. Thirty-Six (36) percent stated that Guardian ad Litems "seldom" visit the children.

3. Only Nine percent (9%) stated that Guardian ad Litems are investigating their cases.

The Aftermath

The survey results caused an uproar with the press. After the survey results were released, several newspapers contacted local courts to get more information on GALs. One such court released the billing information for several GALs in and around Stafford County, Virginia. Many of the GALs were receiving approximately One Thousand and 00/100 Dollars ($1,000.00) per case. 

So what is the result of all this bad press?

GALs and family lawyers are currently debating what these results mean for the legal community. Some legislators are already talking about abolishing the role of GALs entirely. Legislators are being faced with a large bill and anger over the perceived lack of accountability for GALs. It is likely that there will be huge changes to the GAL system going forward.

Suggestions for Change

Whether we agree with the results of the study or not, we GALs have failed. At the very least, we have failed to work collaboratively with other social service professionals. The lack of communication between GALs and CASA has resulted in animosity and a lack of mutual understanding of what our job is.

The problem facing GALs is reminiscent of the public perception of lawyers during changes to the disciplinary rules in the 1990s. People don't know what we do, or why we bill so much time. 

The first step forward is to begin working more closely with our volunteer counterparts. We need to educate our colleagues on our role, and work to clear any misunderstanding. Furthermore, we need to make absolutely sure we abide by the standards that govern GALs.

Finally, we need to advocate for more stringent standards for GALs. The standards right now are simply baseline requirements. As with the changes that came by switching away from the disciplinary rules, we need to modify the standards that govern GALs. Only when we have a more comprehensive set of guidelines will we be able to perform to the best of our abilities.

What Are Removal Proceedings?

If you have found this article, it is likely that you are facing one of the most difficult times in a parent's life. Many states have proceedings that are known as "removal proceedings". This is a complicated, multi-step process that begins whenever the Government has concerns about the health and safety of your children. The purpose of this article is to dispel some of the unknown factors that go into these proceedings.

In the state of Virginia, these proceedings are initiated by the Department of Social Services. They can start a number of different ways, but typically are in the context of an Emergency Removal. Facts have come to the attention of DSS which leads them to believe that the children are no longer safe in your home. 

One of the first steps can be the initial removal of the children upon an "affidavit" filed with the Court. this document outlines to the Court why the Department thinks the children should be removed. Within a short period of time after this removal, you are entitled to an initial hearing to determine if the removal was appropriate. At that hearing, you can choose to participate with DSS or fight the removal. 

A few things can happen at that first hearing. The Court can decide to take up both the reasons for the removal and whether or not the children have been "abused or neglected". Alternatively, the Court may split these two issues up into two different hearings.

If it is split up, you will have another hearing called an "adjudicatory hearing" within 30 days unless all agree to push it out further. At this hearing, the Court will take evidence about whether the children were abused or neglected. After this hearing, you will get a "dispositional hearing". At that hearing, the Court will decide whether the children will be returned or will continue with their placement elsewhere.

If you are facing a removal proceeding, you need immediate counsel. Courts will typically appoint counsel for those who cannot afford counsel. However, if you can afford counsel, it is imperative that you begin looking for an attorney immediately upon receiving notice of the removal.