Life is dynamic, not static, and just because your life's situation was one way when you and your significant other initially separated does not mean that it will stay that way forever. Virginia family law understands that a person's marital status, economic situation, mental health and other life events may change over time and those changes may necessitate an amendment to an existing Child Custody/Visitation Order.
Every time a court addresses Child Custody/Visitation, it must do so based on what is in the best interest of the children. In doing so, the court must consider ten (10) factors:
- Age and physical and mental condition of the child, while taking into consideration the child’s changing needs;
Age and physical condition of each parent;
- Relationship between each parent and child, and each parents the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
- The needs of the child, giving due consideration to other important relationships of the child, including, but not limited to siblings, peers, and extended family members;
- The role each parent has played and will play in the future, in the upbringing of the child;
- Relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child;
- The ability of each parent to cooperate on and resolve disputes regarding matters affecting the child;
- The reasonable preferences of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such preference;
- Any history of family abuse; and
- Such other factors as the court deems necessary and proper to the determination.
There are two (2) types of custody in Virginia, sole and joint. In addition to determining the type of custody, absent an agreement between the parents, the court will set out a visitation schedule for the non-custodial parent.
A parent who seeks to modify or amend an existing Child Custody/Visitation Order will have the burden of not only proving there has been a material change in circumstances since the last Order but, also, that a modification is in the best interest of the children. It is always best to focus on the ten (10) factors listed above when you present your case to the court.
Here are three issues (3) that our clients most often come to us with:
My child wants to live with me, now what?
This falls under factor 8, “reasonable preference of the child”. In determining custody, the child’s preference is one of the factors the court must consider. If the child has reached the age of discretion, his/her wishes should be given weight but are not controlling. While it may be very important to the child that he/she be able to express his/her preference, the court recognizes that a child’s wishes may not always be what’s in his/her best interest. Put simply, just because a child may wish to live with one parent over the other does not, in and of itself, mean that the wish will be granted.
I have orders to move, can I take my child with me?
This issue encompasses at least nine (9) of the factors and it is often one of the biggest reasons a parent seeks to amend a Custody/Visitation Order. The parent seeking permission to remove the child from Virginia must prove that the relocation independently benefits the child and that the relocation would not substantially impair the other parent’s relationship with him/her. When confronted with this dilemma, keep in mind that the primary and paramount focus of the court will be the welfare of the child.
My ex and I cannot get agree on anything, what can be done?
This issue encompasses factors 3, 5, 6, and 7, absent divine intervention or an exorcism, the best way to resolve this issue is for a parent to seek sole custody. Our courts have long recognized that when a parent is unwilling to cooperate with the other parent to resolve disputes or when a parent is unwilling to foster an appropriate relationship with the child, joint custody simply does not work.
While everyone’s situation is unique, hopefully we have given you some insight into the minefield that is Virginia family law. If you want someone with the legal knowledge and experience to help you dodge the landmines please call Ms. Corry Smith or Mr. Romeo Lumaban, Jr. at The Smith Law Firm, PLC. for a consultation.