Determining Custody and Visitation

Posted on Apr 22, 2019 by Katie Carter

If you’re like me, you hate the idea of living with uncertainty. Even worse than uncertainty generally is uncertainty where your children are concerned. If you don’t have anything official regarding custody and visitation – no agreement or court order – then both you and your child’s father have custody.

That sounds unpalatable to you? You want to do something about it to ensure that you have the type of custody that you feel you should have given the level of care you’ve given your child throughout his or her life? That’s something I hear very, very often.

No one wants to do nothing when it comes to custody and visitation – but, sometimes, that’s the best answer. Whether you should attempt to reach an agreement with your child’s father, file custody and visitation petitions in the juvenile court, file a divorce in the circuit court, or do nothing, you should always carefully weigh the various options.

In general, I recommend doing nothing when what you want is exactly what’s happening. If he’s not involved, and you’d prefer that he didn’t actually get any visitation – well, why take it to court so that he feels he has to get involved? Not very many things make someone stand up and take notice faster than if you file some kind of lawsuit. And, in my experience, very few dads are willing to sign away as much of the time with their children as the children’s mothers want them to – especially once child support becomes a factor.

But if he’s already doing what you want?  The longer you wait, the more evidence you have that (1) he has not stepped up, and (2) that life with you is normal for your child, and therefore in his or her best interests.

Should I take action – or not – in my custody and visitation case?

It all depends on your unique situation. It’s a good idea, in almost every case ever, to work with a licensed and experienced Virginia custody attorney to get an idea of the potential issues and what a judge might do if your case came before one.

Keep in mind that, in general, judges are wildcards. It can be very, very difficult to predict outcomes with any kind of certainty.

If you and your child’s father can reach an agreement, that’s often ideal – but you may very well find that he’s not nearly as willing to do what you want him to do as you might wish he would be. Is that a barrier to an agreement? Maybe.

So should you go to court? Is it worth the risk? I mean, ultimately, probably, something will have to be done. Either you’ll need child support (which he likely won’t pay voluntarily) or some other issue (like your relocation or remarriage or something) will force custody and visitation to the forefront.

If you have what you want, though, and your child’s father isn’t currently pushing for more… Maybe not rocking the boat is the answer. Moms often tell me they want to have custody and visitation determined, or change custody and visitation, to reflect what’s actually happening. If he’s staying out of your hair for the most part, it may be worth considering the possibility that leaving well enough alone can let you fly under the radar for a bit longer.

He says he wants to do something about custody and visitation.

Just because he says he wants to have custody and visitation determined doesn’t mean you need to start taking steps for him. If he wants to take action, he can file petitions!

I can’t tell you how many times the women I have in my office are ones who are just reacting to their husband or child’s father’s threat of legal action. They always want to know, “Should I go ahead and file first?” Its always highly case-specific, but consider the possibility of allowing him to actually make the first move.

Fairly often, I see husbands/children’s fathers threatening to do something – but do they? Sometimes. But a lot of times, it’s an idle threat, designed to make their wives/children’s mothers anxious and unsettled. Will your child’s father file? Ultimately, you know him better than I do.

It’s always a good idea to consider your options, and any potential outcomes, before you act. It’s tempting to think that going to court will settle things, but the reality is that, all too often, the results in court are underwhelming or disappointing – not to mention expensive.

Remember, too, that the laws have changed. Judges are required now to consider all custodial options – primary physical, shared, and split custody – equally. That has resulted in a greater number of cases where shared custody (which is what happens when the non custodial parent gets 90 or more days in a calendar year) reigns supreme.

There’s no reason to fear going to court, but there’s also no reason to choose it if it turns out that it’s not the best option for you, strategically. I don’t mean to suggest that you shouldn’t wield it as an appropriate tool in your case if necessary, but only to underscore that, if you do decide to file petitions and pursue a litigated result, you should do so after consulting with an attorney and determining that this course of action is best for you and your children. (And, of course, after correcting any potential issues on your side that your attorney might have identified.)

It’s not automatically better to file. It’s not automatically better to do nothing. It’s a careful weighing of pros and cons, and analyzing your current situation, to determine what’s ultimately going to make the most sense.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys to get an idea of the best course of action in your case, give our office a call at 757-425-5200. Want to get started right away? Request a free copy of our custody book for Virginia moms by clicking here.