Abandonment and Custody

A woman I met with the other day asked me a good question, “If he abandons us, will that hurt his chances for custody?” She went on to tell me that, thirty some odd years ago, when her mom got divorced, her attorney gave her that advice. Now, facing divorce herself and with a small child of her own, her chief concern was how to keep custody of her daughter. Her husband had since moved out of the house and made little effort to continue to spend time with the child.

It’s an all too common story, but there are definitely some issues here that it would benefit you to know about, especially if you’re facing divorce with a small child in tow.

So, of course, the first problem is that this lady was listening to (and worrying about) advice she received from someone who had been through the process thirty years ago! While you can sometimes get good tidbits of information from other people, if they were divorced in another state, in a different time (and, trust me, thirty years ago was a very, very different time where divorce and custody law are concerned), or with different surrounding circumstances, you can also find yourself worrying unnecessarily or, on the other hand, not worrying about the right things. So much can change based on time, geography, or personal situation that it’s important to make sure you’re getting your divorce or custody advice first hand, rather than from other people (particularly if those other people aren’t attorneys themselves).
There are some generally good pieces of advice that won’t change throughout the years (don’t bad mouth your child’s father in front of the child, don’t share too much information with family and friends, and so on) but there’s also lots of information that can vary dramatically. This piece of advice illustrates that point.

Abandonment and divorce

Abandonment in Virginia is grounds for divorce. Abandonment can be physical (meaning that he –or you – moved out of the marital residence), or financial (meaning that he –or you – has withdrawn financial support).

Abandonment generally doesn’t have very much to do with custody. Grounds for divorce are separate from allegations related to the fitness or lack thereof of a particular parent with respect to their ability to have custody. For the most part, using a fault based ground for divorce, including abandonment, has very little to do with custody. Whether you’ll win it or lose it (and, generally, custody isn’t won or lost, anyway, but instead shared to some degree) doesn’t have much to do with whether desertion, abandonment, or even adultery are alleged.

As far as the court is concerned, these things are separate from a person’s ability to parent. Whether he cheated on you—well, it might not make him the world’s nicest guy (though don’t expect the judge to admit that), but it doesn’t necessarily have any bearing (in the court’s view, mind you) on his ability to be a good dad. He can be a bad husband and a good dad simultaneously. He can also be a bad husband and a bad dad – but you’ll likely have to prove that independently of your allegations for the divorce itself.

What if I want to leave the house?  Is that abandonment?

It may still be grounds for divorce.

Depending on the circumstances involved, if you leave it COULD open the door to your husband being able to file on your abandonment as grounds for divorce.

Technically, you shouldn’t leave unless you have an agreement to do so. That’s not to say that people don’t do it – they do, all the time – and in some cases it could constitute desertion. Of course, it’s a pretty case specific, too. If you’re thinking about leaving, you should be sure to consult an attorney first to make sure you aren’t opening yourself up to any fault based grounds for divorce.

Don’t leave the kids behind. If you leave, take the children with you.

“But wait,” you might be thinking, “I thought you said that abandonment is grounds for divorce, and doesn’t necessarily have any bearing on custody.”

Well, it doesn’t. You could move out of the house, and a judge could theoretically find that you “abandoned” the marriage for purposes of the divorce. That probably won’t have any bearing on custody – after all, just like he could be a bad husband and a good dad, you, too, could be a bad wife (not saying you are, just for argument’s sake) and a good mom. It doesn’t automatically follow that you’ll lose custody.

But… if he files for divorce and asks for temporary custody while the litigation is pending after you’ve left the kids behind, he may get it. He may have awhile, while the divorce is pending, where he has custody and you have visitation.

Remember that, when a divorce is filed and a pendente lite hearing (Latin for “while the litigation is pending”) is scheduled to determine temporary issues like custody, child and spousal support, etc., the judge is mostly concerned with maintaining the status quo. If the kids were left with dad, dad may wind up with temporary custody – at least until a different order can be entered, or a different agreement reached. That’s not a situation you want to find yourself in.

Sure, you could petition the court, or negotiate aggressively, and end up with shared or even, ultimately, primary physical custody —but by leaving without the kids, you will have made the situation much, much more difficult (and probably expensive) for yourself. By leaving the kids behind, you do sort of send a message that the kids weren’t all that important. After all, if they were, you would have taken them.

Keep in mind that here I’m not expressing my opinion but telling you what kind of opposition you might be expected to face if you were to take these steps.

What if I’m facing domestic violence?

Your physical safety is, obviously, the most important thing. If you’re a victim of domestic violence, you may have to leave the marital residence.

If you do so, though, make sure that you take the children. I’d tell you that anyway, but it’s especially important if your husband is verbally or physically aggressive. If you truly think he’s dangerous, why would you leave your kids there? Even if he’s only aggressive or violent with you – or, at least, he has been so far – you wouldn’t want to leave your children in that kind of environment. That’s certainly how the judge would see it, and you don’t want to fall into that trap. If he’s dangerous, he’s so dangerous you shouldn’t want to leave your kids there.

Physical violence could be both a grounds for divorce (Virginia law allows cruelty and apprehension of bodily hurt as grounds for divorce) and a reason to argue for custody. Either way, it’ll require careful planning and gathering of evidence. It’s definitely a good idea to talk to an attorney one on one about your unique situation, so you can come up with a custom tailored plan for how to move your case forward. Knowing your goals ahead of time can be really helpful as you begin to define the evidence you have, the options at your disposal, and the choices you will want to start making.

For more information, or to discuss your options, give our office a call at 757-425-5200. It’s definitely a good idea to set up a one on one consultation with one of our licensed divorce attorneys sooner rather than later.

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