A contested child custody case can be the most emotion-filled and stressful part of a divorce proceeding. The words, “losing my kids” are some of the most painful to think about. Whether a contested custody case is occurring as part of a divorce proceeding in a Virginia Circuit Court or as a stand-alone custody case in the Juvenile and Domestic Relations Court, the case is always heard by a judge. Just like divorce cases in Virginia, custody cases are never heard by a jury.
Discussing a custody case with an attorney at an early stage is extremely important. It is crucial to prepare for the trial, but it is also important to make decisions and work with the other parent in ways that will not adversely affect a child custody case. Custody cases can be complicated and they can involve testimony by child therapists, social workers, teachers, doctors, Guardians ad litem, baby-sitters, care-givers, among many others.
On top of that, with the increased operational tempo of the United States Military over the past 10+ years, more and more service-members with custody are facing the daunting situation of what to do with their children during deployments and how best to handle moves under PCS or Permanent Change of Station orders. This adds a layer of complexity to custody cases, and moving out of state with children can be extremely difficult and sometimes the children can be prevented from moving regardless of military orders.
This all sounds overwhelming…and it can be. However, there are a few things to mention that can help simplify a child custody case.
1. The “best interest of the child” is the guiding principal in every Virginia custody case.
2. If you can work out an agreement in your Separation Agreement or early on with your spouse, this is far better than leaving the issue undecided for a state court judge to decide in an emergency situation (such as an upcoming deployment).
3. In deployment situations, one possible way ahead is to arrange a transfer of custody from the deploying military parent to the other parent by means of a consent order prior to the deployment. The order can detail the circumstances of the transfer and outline the specific or expected dates of departure, expected date of return, educational care, and any other custodial arrangements. It can also make it absolutely clear that the child or children will be returned immediately the deploying parent without the need to return to court to request relief.
4. The Servicemembers Civil Relief Act (“SCRA”) affords protection to service-members, Reservists and members of the National Guard. One of the benefits under the SCRA to deployed service-members is the ability to suspend a civil court case until they are able to participate. It is important to discuss this with an attorney – because there are many specific items required by a court in order for a service-member to be able to invoke the protections of the SCRA to delay a case. In some cases, a custody case can trump the SCRA – so it is especially important to discuss this case with an attorney prior to setting up some sort of custodial arrangement and then deploying and thinking that the SCRA will allow you to wait until you return to litigate a custody case.
The Code of Virginia lists several factors that a Judge must consider when determining the “best interests of child”. Virginia Code § 20-124.3 states as follows:
“§ 20-124.3. Best interests of the child; visitation.
In determining best interests of a child for purposes of determining custody or visitation arrangements including any pendente lite orders pursuant to § 20-103, the court shall consider the following:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to the other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. 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;
9. Any history of family abuse as that term is defined in §16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
The judge shall communicate to the parties the basis of the decision either orally or in writing. Except in cases of consent orders for custody and visitation, this communication shall set forth the judge’s findings regarding the relevant factors set forth in this section.” VA Code § 20-124.3.
To complicate matters a bit further, Virginia law recognizes two types of custody: Legal Custody and Physical Custody.
Legal Custody is the ability to make major decisions affecting how a child is going to be raised. This normally involves decisions about education, religion and non-emergency medical care. In most instances, absent abuse of a child or some other issue like drug abuse, a court will award joint legal custody, which means that both parents will jointly make these sorts of major decisions regarding the child. In cases where there are serious issues with one of the parents, sole legal custody can be awarded whereby one parent makes all of the decisions regarding the child or children.
Where most custody cases become heated is on the issue of “Physical Custody.” Physical custody is quite simply where the child physically resides. It also determines the amount of time a child spends with each parent. If a child has more than 90 overnight twenty-four periods with each parent per year, this is often referred to as “shared custody.” One of the reasons why this gets so heated, is that child support is based, in part, on the custodial arrangement of the parties. The more time each custodial parent takes care of the child, the less amount of child support that parent will likely have to pay.
There is also something called “split custody,” where one or more children live with one parent and another child or children live with the other parent. In our experience, courts do not generally favor split custody, but there are certain cases where children are better off being split between the parents and not living primarily with other siblings.
Some take-aways on the issue of Child Custody
Child custody can be the most complex part of any contested case. Preparing for trial can be daunting and it can feel overwhelming in light of everything else that may be going in with the breakdown of a marriage. On top of that, how to present evidence and prepare for trial, as well as how a judge will react to the presentation of evidence, are all very important aspects of the case that should be discussed with an Attorney. Some custody cases involve what is known as a Guardian ad litem. A Guardian ad litem is essentially an appointed lawyer for the child or children in any contested custody case. This person is normally a Virginia lawyer who is trained in child custody matters and then appointed by the court to advise on what that lawyer believes to be in the best interests of the child or children in that particular case. The Guardian ad litem is not the attorney for either parent…but solely there to represent the child or children. A Guardian ad litem will normally write a report that is then given to the judge to assist in determining what the best interests of a child are. The Guardian ad litem often will interview both parents, visit the child’s school and speak with teachers, as well as other things in preparing their report. It is important to speak with an attorney on how best to interact with a Guardian ad litem and how best to prepare a custody case.
In sum, it is completely understandable to feel overwhelmed. Many people go through this as part of a divorce process. In choosing the right attorney, this should be something that is discussed early on and the attorney should be able to provide many tips and strategies on how best to approach this aspect of the case and/or how to best approach negotiations with the other side. With the right attorney on your team, your stress levels should be reduced and your best foot forward in litigation, if that is in fact that only way ahead.