After you’ve lost child custody in Virginia

Posted on Aug 26, 2022 by Katie Carter

There are probably very few things as devastating as losing custody of your children. As a mother myself, I can only imagine.

In my experience, this happens pretty rarely, and (I’m sorry to say) often not without reason. In the majority of cases, the parties agree about how custody and visitation will be handled between the parties. In the minority of cases, where litigation is required, the parties often ending up sharing custody to some degree.

Shared custody isn’t necessarily a 50/50 split, but occurs anytime the non custodial parent (the parent who has the child less) has 90 or more days in a calendar year. So, a shared custody arrangement could result in the non custodial parent having anywhere from 90 to 182.5 days a year. That’s a pretty wide range.

What does ‘losing’ custody mean to you?

Ultimately, when it comes to losing custody, I find that there’s some subjectiveness in the way the world is applied. Is shared custody, in your view, losing? Some moms would certainly say so, but that’s not my opinion. As a mother myself, I know that it would be difficult for me to find myself required to share custody, but, as an attorney, I don’t view shared custody as a loss.

These days, the courts view custody and visitation differently than they used to. Rather than favoring mom, the courts favor whatever arrangement allows the child(ren) of the marriage to have the parents in their lives to the greatest degree. The court seems to believe that the best interests of the child is most often served when both parents are involved.

Whether you agree with this or not is neither here nor there, since, when you litigate custody, it’s up to the judge to make a ruling on custody and visitation, often with valuable input received from the Guardian ad litem.

It’s also relevant to point out here that the law has changed with respect to custody; now, it requires the court to consider all forms of custody equally. That doesn’t mean that there’s extra weight given to shared custody, but it has resulted in more shared custody being awarded in litigated cases.

If you’re struggling with shared custody, I definitely suggest you do what you can to work through your feelings in therapy. They’re real and they’re valid, but they may not be serving you well in this situation, especially if your child’s father is unlikely to do something shockingly wrong that causes him to lose custody later.

If he is likely to do something wrong later, I’d remind you, too, that custody, visitation, and child support are modifiable based on a material change in circumstances – so, document, document, document. You can go back to court and re-petition the court for a change. Nothing is set in stone. Also, it’s still not a loss, and it may even offer you an opportunity for a more balance life, if you can open yourself up to the possibility of this having unintended benefits. I know, I know – you may not be ready for that yet, and that’s okay. One thing at a time.

It’s not shared custody. I REALLY lost custody.

It can happen, sometimes, that a mom loses custody. Oftentimes I see this as a result of a drug or alcohol addiction, often where another family member has stepped in and taken custody over.

Sometimes, for whatever reason, another family member steps in and takes full custody. In the meantime, mom is in a period of relatively little stability.

There’s usually something going on. I can’t think of a single case that I’ve worked on where the mother lost custody and there was no reason at all. Maybe it’s stability or homelessness, maybe it’s a relationship with a person with a questionable background, or, like I mentioned, addiction. It could be a violent relationship with the child’s father, or adjacent to a protective order or similar action against the mother. Maybe a struggle with mental illness. Any number of things could happen and someone else could wind up with custody.

It is difficult for a non-parent (as in, neither mom nor dad) to get custody, because they would have to demonstrate that ‘actual harm’ would befall the child without their involvement. Once they have custody, though, they can participate in custody and visitation proceedings alongside mom and dad with equal standing, and only have to meet the ‘best interests of the child’ standard.

In these cases, where there’s really something wrong, you’re going to have to dig deep and do the work. If you’re struggling with mental illness or addiction, get help. Follow a treatment program. Take all the parenting time you’re allowed, comply with all the restrictions, and cooperate with the Guardian ad litem, CPS, parenting capacity evaluators, therapists, and whoever else may be involved in the case. Be consistent. Be reachable. Do what you say you’re going to do. Document your progress.

If you’re homeless, get a job. Get back on your feet. Take your time, and do it right. Secure suitable housing. Be aware of who your roommates are, as well as their potential criminal backgrounds, and the backgrounds of any children they might have. Beware of living with a romantic interest.

Should I hire an attorney to represent me?

I don’t mean to suggest that you can’t do it on your own, but it’s incredibly difficult to litigate your own custody case. Not just because the actual art of litigation is difficult (it is, of course), but because the subject of the litigation is one that just hits too close to home for any mom to do an objectively good job representing herself.

You can’t be objective. There’s just no way. To be objective, you’d have to be inhuman, and I probably don’t need to tell you that seeming inhuman won’t help your bid for custody.

You’ll need to work effectively with opposing counsel and the Guardian ad litem (who, spoiler alert, you’ll likely hate with every fiber of your being if you’re anything like any other client I’ve ever had), not to mention present your case effectively in front of the judge while your ex and/or the person who currently has custody of your child looks on. It’s…not easy.

You need someone who can be calm and objective presenting your case, navigating your relationship with the Guardian ad litem, and carrying forward negotiations with opposing counsel. You need someone who knows the law and won’t be pushed around. You need help.

You shouldn’t be punished forever for making a mistake. Get back on track, and get an attorney to help you win custody back. Remember, custody and visitation is always modifiable based on a material change in circumstances. You’ve got this.

Let us help. For more information, to request a copy of our custody book, or to schedule a consultation, give our office a call at 757-425-5200.