Charlottesville, VA Child Custody Lawyers
Child custody is one of the most contentious issues that parents who are separating or divorcing will face. Legal issues involving the time you spend with your children must be approached with care and thoughtfulness.
When you and your spouse can’t agree on these matters, the courts will step in and make this choice for you, which may or not be your desired outcome. Custody cases can be difficult enough for parents but are incredibly harmful to children when they are adversarial.
At Buck, Toscano, & Tereskerz, our goal is to help you resolve child custody issues through the collaborative family law process. This is a non-adversarial approach to family law that treats each party with mutual dignity and respect. Whether you use the collaborative for traditional approach, we will work hard to effectively resolve your case while fully protecting your interests, and the best interests of your children.
Child Custody Laws in Virginia
When parents decide that they aren’t going to live together, they have the opportunity to create a mutually-agreeable custody arrangement. Unfortunately, issues involving children are often emotional and it can be tough to make concessions without help.
When the parents can’t agree, the Virginia family law court uses a principle known as the “Best Interests of the Child” to determine an arrangement for custody and visitation. This will apply whether your divorce was contested or uncontested, or even if you were never married. The goal of the courts is to produce an action that will provide for the well-being of the children, and not necessarily give the parents everything they want.
Types of Child Custody in Virginia
It’s an understandably stressful time when you are faced with the prospect of losing your child. While it’s possible to have a judge decide these issues, you can also resolve them outside of family law court through mediation and other collaborative efforts.
There are generally two areas of custody to be addressed in a Virginia divorce – legal custody and physical custody.
- Legal custody involves the authority to make decisions for a child involving such things as medical care, education, and religion. This also includes deciding where a child will live. In many cases, a judge will award joint legal custody, which gives parents equal say over what happens in their children’s lives. When there are instances of neglect or abuse, however, one parent could receive sole legal custody.
- Physical custody refers to where the child primarily lives. The parent with physical custody will also be responsible for certain day-to-day decision making but also allowing the child to maintain close ties with the other parent. This is also accomplished through a strict visitation schedule that is generally spelled out for the custodial and non-custodial parent in a parenting plan.
There are other custody arrangements, but they aren’t as common. For example, parents of younger children might have joint physical and legal custody. This means that each parent provides a part-time residence for the children and they share equally in decision-making. This may not be as feasible as children grow older. Split custody is even less common, where each parent has sole physical custody of different children.
How Custody is Determined
Virginia family law courts do not give preferential treatment to either the mother or father in custody disputes. The judge will weigh a list of factors when determining who will get primary custody of a child. Some of these factors include:
- The past role each parent has played in the child’s upbringing
- The age and mental condition of the child
- The age and mental condition of each parent
- The needs of the child
- The established relationship between a child and their parent
- The willingness of parents to resolve differences
- The willingness of a parent to support the child’s contact with the other parent
- Any history of abuse
- The best interests of the child
When deciding on custody, the court will also examine each parent’s history and take certain factors into account. These include:
- Criminal convictions
- Use of alcohol or illegal drugs
- Abuse of prescription drugs
- Complaints from Child Protective Services
- Mental health hospitalizations or civil commitments
- Mental or physical impairments that could impact the parent’s ability to care for the child
In most cases, the judge will also speak with the child and consider their preferences. This varies by the child’s age. If the child is under the age of 7, the court will not interview them. The court has the discretion to interview children between the ages of 7 and 13. Judges are required to ask children ages 14 and over about their preferences.
When a Guardian Ad Litem is Involved
The courts in Virginia are only concerned with doing what is in the best interests of the child. In some cases, a guardian ad litem (GAL) will be appointed by the court to represent the children’s interests.
We have extensive experience working with cases involving GALs throughout the Charlottesville area. As soon as a GAL is appointed, we will help them understand our client’s situation and do what is necessary to get everyone on the same page.
Modifying a Child Custody Order
Even after you have a child custody order in place, circumstances might change. If you or your ex has experienced a material change in circumstances, you can request a modification of your child custody order.
Developing a Custody and Visitation Arrangement Outside the Courtroom
The best way to reach a child custody and visitation arrangement is for the parents to develop a mutual agreement without the involvement of the courts. In fact, Virginia courts prefer that parents come to an agreement between themselves. Of course, this is not possible in all cases, but when it can be done this way, it can save parents a significant amount of money and stress.
If parents are on speaking terms and still have a fairly amicable relationship, they might be able to work out a child custody and visitation agreement through direct communication and discussion. This is definitely the most affordable way to do it as it does not cost parents anything but their time to discuss all of the issues and figure out an agreement.
Once they have come up with an arrangement, they should bring it to their attorney to examine it, make sure no important details were missed, and make any necessary corrections. After all the legalities are hammered out, the custody and visitation arrangement will be presented to the court for final approval, which is usually a formality if they see the agreement is reasonable.
If parents are not able to discuss and resolve everything on their own, they might decide to have their attorneys negotiate the child custody and visitation agreement for them. If you decide to go this route, your attorney can best advocate on your behalf if you let them know what is most important to you. Negotiation always involves some give-and-take, so your attorney will want to know where you want to hold your ground and where you are willing to compromise.
Another approach that is becoming increasingly preferred to help resolve Virginia child custody disputes is mediation. Mediation is a voluntary process that is facilitated by a neutral, third-party mediator, but participants are ultimately in control the outcome. Although the mediator guides the discussion, they are not able to impose any type of arrangement unless it is agreed to by both parties.
Our family law attorneys will thoroughly review your situation and determine whether the changes meet the qualifications for a modification. If they do, we can help facilitate this legal process.