Virginia Family Law: What is Joint Custody?

In Virginia there are many different types of custody arrangements available for Juvenile Court judges to meet the needs of children. One of those types of custody arrangements is “joint custody.” Many clients say that they want joint custody. However, not all of them understand what it means to be a joint custodian or what you have to prove to the Court to be awarded joint custody. So what is joint custody, and what does the Court look for?

What is Joint Physical Custody?

The first type of custody is known as physical custody. Physical custody is primarily where the children reside. If two parents have joint physical custody, it means that they are equally sharing parenting time with the children.

The two most common schedules used in joint physical custody arrangements are week on/week off arrangements and week-day splits (3-2-2-3 or 5-2-2-5). The Court is essentially dividing all the time in half.

What is Joint Legal Custody?

Legal custody is who makes decisions about where the child goes to school, who their doctor is, and what church they go to. Joint legal custody means both parents have equal say, and one parent cannot make major life decisions without consulting with the other parent. Unfortunately, many parents who get joint legal custody do not properly consult with their ex, often resulting in major conflicts in court.

How Do You Get Joint Physical Custody?

In order to have joint physical custody, you need to convince the Court that you are able to provide for the children. For example, you must be available to drop the children off at school, pick them up, and take them to appointments. You also have to have a track record of being involved in doctor appointments or therapy sessions.

The Court will not give an absent parent joint physical custody, because they do not have the track record to make it work. Nor will they give someone with night shifts joint physical custody, because you are not available to take care of the children.

Preparing to ask for joint physical custody means reaching out to the school and the doctors and being actively involved.

How Do You Get Joint Legal Custody?

Courts routinely grant parents joint legal custody. Both parents have a say in raising their children. Courts start at joint legal custody, and only revoke that if one parent has a bad track record of making bad decisions.

You Need a Custody Lawyer.

If you are interested in joint custody or the other side is pushing for it, it is important to hire someone who knows what judges are looking for. They can help present the case and get the best result for your child.

Virginia Family Law: How to File to Modify Visitation

Do you have a custody or visitation order that is sveral years old? Maybe you are the non-custodial parent and the other parent has threatened to move out of state. How do you get in front of the judge to make sure your rights are protected?

What are the Required Forms to Change Custody or Visitation?

In order to change a custody or visitation order, there are a few forms that you will need to fill out with the juvenile and domestic relations court. These forms are:

• Motion to Modify : This document notifies the Court about which portion of the order you are wanting to change and what you want the new language to include. For example, if you are looking to change the visitation schedule you would identify the current schedule and the schedule you are seeking. You must also identify why you are looking to change custody or visitation.

• Service Member Relief Affidavit: This document is required to confirm whether the other parent is a member of the armed forces. If they are, that may delay your case if they are on active duty. It is a required document for the Court.

• UCCJEA Affidavit: This document notifies the Court of all the places the children have lived over the last five years. The raeson for the form is to make sure you have chosen the right Court to file the paperwork in.

• Motion to Enjoin: This document notifies the Court that you are trying to stop another parent from moving out of the area with the children.

• Motion to Expedite: This document notifies the Court if there is an emergency that needs to be taken care of if the children are not safe.

There may be other forms required depending on what you are trying to accomplish.

How a Family Lawyer Can Help

These forms can be complicated to fill out. If you file them improperly it can result in your case being delayed or the Court not taking your request seriously. Makre sure you hire a local attorney to help you prepare the paperwork properly.

Virginia Family Law: Changes to Grandparent Visitation

In Virginia, the Court system has historically not been kind to the rights of grandparents. Biological parents would traditionally have a veto power as to the ability of a grandparent to ask for custody. If a grandparent wanted visitation over the objection of the parents, they would have to meet a strong burden known as “actual harm.” However, that lawa has recently changed. So what are the changes to grandparent visitation rights, and what do you need to know if you are a grandparent in Virginia?

The Old Law

In order to understand what the current rules are for grandparent grandparent rights, you need to understand what the old rules were. These rules fall into two categories: custody and visitation

Grandparent rights: custody

Custody means two things: making decisions for the upbringing of a child and being the primary residence for the child. Under the old rules, a grandparent would not be able to ask for custody if both biological parents objected without proving that both parents were “unfit” or a number of special circumstances. Unfit means that the parents are not able to exercise their job as custodians.

Common examples of being “unfit” include excessive substance abuse, mental health disorders, and abuse or neglect. A grandparent may also be successful by showing that the parents previously gave up their custody voluntarily to a third person or to a different grandparent.

There are some more complicated rules if only one of the parents object, but there is still a high burden for grandparents to get custody.

Grandparent rights: visitation

Under Virginia law, Visitation means being able to spend time with your grandchildren. Under old Virginia rules, a grandparent could only get visitation over the objection of the parents by showing “actual harm.” This means that the child would be harmed, whether psychologically or physically, if they were unable to see their grandparents. This was also a high burden for grandparents, and few were successful in meeting that standard.

Virginia Grandparents Rights: The New Law

Starting in 2021, grandparents now have an additional ability to ask for visitation under limited circumstances. If one of the biological parents pass away, and that parent wanted the grandparent to have visitation, then the grandparent can ask the Court for visitation. The idea behind the law is that whole families were being cut off whenever one of the biological parents would pass away. As a result, it is now easier in some scenarios to ask the Court for visitation, but not custody.

Why You Need a Custody Lawyer

As a result of all these changes, it is more important than ever to talk to a lawyer if you are interested in asking for visitation or custody rights for a grandchild. An experienced lawyer can help you navigate these complicated laws and present your case to the Court.

COVID-19 and Custody Issues in Virginia

School is shut down. Custody schedules around Virginia are in disarray. Many people have been calling asking how to handle these developments. Common questions include: a) do I have to allow the other parent to see the child, b) am I allowed to leave the house, c) are we in the summer schedule now, etc.

It is important to understand that these are trying times. This article will give some basic guidance on co-parenting from a legal perspective during a pandemic. However, at the end of the day, the best advice anyone can give is read your court order.

Common Covid Questions for Split Households

I would like to start by answering those most common questions. Generally, yes, unless there is something in your custody order to the contrary you must continue to follow it. Just because the court system is closed down does not mean the court order goes away. Furthermore, there is no order from the Virginia Governor, as of the time of writing this article, prohibiting you from traveling to exchange custody. It is unlikely that there will be such an order based upon how other states are responding. Finally, unless your court order says otherwise then you are unlikely to be operating under a summer schedule. Every custody order is different, but most orders adopt the school system’s definition of summer break.

Penalties For Ignoring Your Custody Order

The same penalties apply now as there would be if you were not following the custody order otherwise. The other parent can file a show cause and ask the court to find you in contempt for violating the court order. The court has a lot of power when hearing a show cause. The court can a) impose a heavy fine, b) impose some kind of jail punishment, c) give the other parent extra parenting time to make up for the delay and even, in limited circumstances d) consider a change in custody.

Additionally, violation of a custody order is still a crime in Virginia. You can be charged with a crime for intentionally violating an order. This can adversly impact background checks and have other consequences.

Talk To a Custody Lawyer

Now, more than ever, it is important to understand the specific wording of your custody order. Courts are likely to be inclined to punish severely parents they believe are actively taking advantage of this horrible situation. When in doubt, reach out to a lawyer to schedule a phone consultation and discuss your child’s specific needs and the terminology in the order.

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.