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Child Custody And Visitation FAQS

When determining the children’s best interests, the court considers the following statutory factors (Va. Code § 20-124.3):

  • The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  • The age and physical and mental condition of each parent;
  • 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;
  • 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 that each parent has played and will play in the future, in the upbringing and care of the child;
  • 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;
  • 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;
  • 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;
  • 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
  • Such other factors as the court deems necessary and proper to the determination.

Answer: No, while the child is in your care, you can make decisions on his or her behalf that are not major. For example, unless a court order or agreement provides otherwise, you can decide what outings to do with the child during your scheduled time with the child without seeking approval by the other parent. By contrast, you do need to seek approval for all major decisions.

Answer: The Virginia courts generally retain jurisdiction to hear disputes between parents regarding the minor children’s care. Parents who share legal custody can also investigate resolutions outside of court, such as negotiations through legal counsel, mediation, and co-parenting counseling.

Answer: Yes, under Virginia law, a court may award child custody or visitation to any person “with a legitimate interest,” such as grandparents, step-parents, former step-parents, blood relatives, and family members.

Answer: Yes, even if one person enjoys sole legal custody, the other interested party can be awarded shared physical custody or visitation.

Answer: Yes, but it is best for final decisions of the parties to be reduced to a court order for clarity and compliance. If the parents are divorcing in Virginia, their custody issues can be determined through a formal signed agreement. This agreement is then entered into a final order. Parties can retain counsel to negotiate or review agreements and can utilize other services, such as mediation. While custody matters are personal and best decided outside a courtroom, good lawyers help the parties reach a final agreement which can be incorporated into an order.

Answer: Children should rarely testify in court, as it can be a difficult and traumatic experience for them. A good lawyer may find ways to introduce probative evidence that speaks to the children’s best interest without subjecting the child to testifying. In some cases, a court or the parties may request that a Guardian Ad Litem be appointed to represent the child’s best interest. In other cases, a custody evaluation can provide a means by which a child’s voice may be heard without testifying.

Factors.
Pursuant to Va. Code 20-108.1, the court will consider the following factors when determining the child support award:

  • Actual monetary support for other family members or former family members;
  • Arrangements regarding custody of the children, including the cost of visitation travel;
  • Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party;
  • Debts of either party arising during the marriage for the benefit of the child;
  • Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
  • Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
  • Any special needs of a child resulting from any physical, emotional, or medical condition;
  • Independent financial resources of the child or children;
  • Standard of living for the child or children established during the marriage;
  • Earning capacity, obligations, financial resources, and special needs of each parent;
  • Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
  • Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;
  • A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
  • Such other factors as are necessary to consider the equities for the parents and children.

Duration.
Child support typically terminates for each child when he or she turns the age of eighteen (18) years, upon his or her death or a parent’s death, or upon his or her marriage or emancipation. However, pursuant to Va. Code 20-124.2 (C), the court shall also order that support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever first occurs. The court may also order the continuation of support for any child over the age of 18 who is (i) severely and permanently mentally or physically disabled, (ii) unable to live independently and support himself, and (iii) resides in the home of the parent seeking or receiving child support. In addition, the court may confirm a stipulation or agreement of the parties which extends a support obligation beyond when it would otherwise terminate as provided by law.

Tax-wise, child support does not count as income for the receiving spouse and the paying spouse cannot deduct it.

Answer: This course of action is generally not encouraged; however, it is sometimes necessary. Consultation with a lawyer would be best before such action is taken. The Virginia courts tend to be concerned with any “unilateral actions” with the kids taken by one parent to the detriment to the other parent.

The attorneys at The Roop Law Firm will bring their experience, empathy and talent to work for the best interests of you and your family.

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