A BIG Virginia Custody and Visitation Mistake

Posted on Nov 16, 2015 by Katie Carter

I talked to someone a couple weeks ago who had an interesting case, and I thought I’d write a little about it. Of course, I can’t divulge any confidential information, and, really, I don’t want to share anything with you other than the situation she found herself in—and the innocent way she almost made a pretty big mistake with respect to custody and visitation of her son.
Let’s call her Susan. Susan and her former husband, let’s call him George (because I watched Seinfeld re-runs last night), had been divorced for some time. George is kind of a jerk, but, for the most part, Susan and he were able to make things work.
They had a pretty regular custody arrangement, like thousands of others I’ve seen before. George got every other weekend, Wednesday evening, and two weeks during the summer to take a vacation (which he never did, or, at least, never with the child). They alternated holidays—or, at least, that’s what the agreement said. Again, George often didn’t show up (and often without notifying mom that he wasn’t coming) for these visits, even on holidays.
That is, until fairly recently. Recently, George decided (pretty randomly) to file some show cause petitions in the juvenile and domestic relations court, citing Susan’s failure to allow him to have visitation with the child. Susan believed that, at the root of this new drama, was George’s desire to reduce the amount of child support.
Susan told me that George never showed up for the child on any of those occasions. But, still, she was (and understandably so) very upset about the show cause petitions, understanding that they could carry serious penalties for her. Feeling the need to defend herself, Susan went down to the juvenile and domestic relations court on her own and filed show cause motions against him, and also a petition for custody and visitation, thinking that she could ask the court to reduce dad’s visitation. He wasn’t exercising it anyway, she reasoned.
She came in to talk to me mostly because she was worried about the show cause petitions. Not wanting to get in any legal trouble, she was concerned about the petitions and how she’d defend herself. At her initial appearance, the judge seemed harsh and distant, and she couldn’t tell whether he even believed her when she spoke. Was she in danger of being held in contempt of court—or worse?
The good news, I told her, is that, because the show cause petitions were filed by him, the burden of proof was on George as well. He’d have to prove that she didn’t allow visitation—with text messages or emails or other evidence. Without it, he would have a difficult (if not impossible) job of trying to convince the judge that these things actually happened. The show causes, even though they provoked a great deal of anxiety of Susan, weren’t the real issue.
The mistake Susan made is the reason why I’m writing to you today. It’s a reminder to me of the little, innocent, logical decisions people make in custody and visitation cases that end up totally messing up their cases.
There’s no reason you have to have an attorney in the juvenile and domestic relations district court if you don’t want one; plenty of people every day handle their own cases. Still, many times, it’s beneficial to at least meet with an attorney to get an idea of whether your case is on the right track. There are lots of little things that people who don’t handle these cases on a daily basis just don’t know. It’s not their fault; they’re not dumb. The law is highly technical and constantly changing. Still—especially when it’s a custody case we’re talking about—it’s important to be especially careful.
So, what was Susan’s big mistake?

The court can’t handle any issues other than the ones properly brought before it.

Before Susan filed custody and visitation petitions, all that was filed were a couple of show causes. The show causes, on their own, would not result in a change in child support or a change in visitation or custody. You can’t just get in front of a judge and ask him to do whatever you’d like him to do. He can only do what you’ve asked him to do, based on the petitions you’ve filed (and, even then, he’s restricted by what is legally allowed). It’s not up to the judge; it’s up to the person filing. The person filing has to know what he (or she) is asking the court to do. Then, the person has to file the appropriate petitions to bring those issues properly in front of the judge.
Now, to be fair, Susan DID hope that the judge would change custody. But, with the custody arrangement she had in place (every other weekend, alternating holidays, two weeks in the summer), it’s pretty unlikely. Especially considering that, once the issue was brought properly in front of the court, George could also begin to prepare a case asking for a change in custody (which could result in a change in child support as well, depending on how much time he had with the child).
My experience is not that good parents regularly lose custody. Quite the contrary; in fact, good parents rarely (if ever) lose custody. Still, just because you don’t “lose” custody doesn’t mean that you can’t end up with something that is worse than what you already had. In my experience, most couples reach an agreement (like Susan and George did) regarding custody and visitation, and most of those agreements give mom primary physical custody. In other cases, ones where mom and dad fight over custody and have to go to court to decide, I see more and more shared custody awarded.

Primary Physical versus Shared Physical Custody

Most moms want primary physical custody. In a primary physical custodial situation, the non custodial parent (the parent who has the child less) has 89 or fewer days with the child during the calendar year. As far as it relates to child support, it doesn’t matter whether dad is a total deadbeat who never sees the child or whether he exercises his full 89 days, child support is the same.
In a shared physical custody scenario, on the other hand, the non custodial parent has more than 90 days with the child in a calendar year. When you’re talking about shared physical custody, child support is based on a sliding scale. If the non custodial parent has 90 days with the child, he will pay more in child support than if he split the year with mom and had the full 182.5 days.

The BIG custody mistake

In a case like Susan’s, it’s unlikely that she could walk away with better than the custody arrangement she already had, giving her primary physical custody and the best child support arrangement possible. Could dad end up with less time? I guess it’s possible, but she didn’t really tell me anything that was so bad that I suspect he’d lose time. Frankly, there isn’t that much to lose; this arrangement is really pro-mom already.
What I worry about, though, is that she’d lose some time. That, if custody became a fight, she would wind up with something more closely approximating shared custody—and even getting a reduction in her child support!
The worst part? It’s not because DAD brought the issue in front of the court (which he could have done, but didn’t), it’s because MOM jumped the gun, got worried, and filed for everything she could, not knowing that she was bringing more issues in front of the court for the judge to decide on.
It’s an easy mistake to make, but it’s one that could have cost her big. My advice to her was to remove the custody and visitation petitions as quickly as possible. She can’t help if George later on brings those petitions in front of the court, but she doesn’t have to do it herself, either.
I don’t think she’d lose custody; she’s a great mother who kept telling me how important it was to her to have George in her son’s life. Still, with such an advantageous custody arrangement, it seems unwise to tempt the gods by bringing custody and visitation in front of the judge. Let him bring his show causes and prove them, too—but don’t add in custody and visitation if you’ve got more to lose than he does!
I want to handle my custody case on my own, but what if it goes wrong?
If you’re handling a case like Susan’s, you may very well want to handle it on your own. It happens all the time. I’m telling you today about a mistake to help prepare you for things like that. You absolutely can handle a custody case on your own!
Juvenile court is a lot more user friendly than circuit court. Not only that, but, if you end up with a result you don’t like or can’t live with, you can appeal your case to circuit court. In the circuit court, it’ll be heard de novo—which means it’ll be just like a brand new case; none of the record from the juvenile court will follow you. So, basically, you get a free do over and, if you want, you can hire an attorney to represent you at this point.
If you want to make sure you’ll be fine, whether or not you decide to hire an attorney, you should consider attending Custody Bootcamp for Moms. It’s an all day, super intense seminar, taught by Kristen Hofheimer and Caitlin Walters. In it, you’ll learn tips and tricks like these to help make sure that your custody case is handled as well as an attorney could handle it for you. For more information, to register, or to see what’s covered at the seminar, check out our website by clicking here, or give our office a call at (757) 425-5200.