Getting Supervised Visitation in Virginia Custody Cases

Posted on Mar 4, 2020 by Katie Carter

If I had a quarter for every time a client asked me about supervised visitation, I’d have an awful lot more quarters than the number of cases where I’ve seen supervised visitation actually get awarded. It’s not like an annulment, which is essentially a unicorn, but it’s not very common, either. In fact, it’s pretty uncommon.

Whether you’ll be successful in getting supervised visitation is really going to depend entirely on your facts and the reasons you can articulate for needing to get supervised visitation in place. It’s almost certainly not going to be enough to say that you need supervised visitation because your child’s father has never watched the kids alone and you’re not really sure he can handle it.

He’s going to need to have real issues that would translate into an inability to meet the kids needs and/or serve their best interests. If he’s suffering from untreated mental health issues, or has some criminal convictions that are particularly concerning (particularly if those convictions happened after you had children with him), that might be relevant information that the court would consider. But it’s not a guarantee. In fact, in custody cases, nothing is ever a guarantee.

Mental Health Issues

So, what if he’s got some mental health issues? Would that qualify you for supervised visitation? Maybe, but it depends.

In general, the court doesn’t like to hold a person’s mental health struggles against them, especially if they’re actively seeking treatment. Even for some more serious conditions – borderline personality disorder, manic depressive, etc – as long as the parent is aware of the condition, is seeking treatment for it, and is up to date on medications, chances are probably pretty good that they’ll get a chance to parent their kids.

Depression and anxiety is almost certainly not going to be enough (and thank goodness, because, if it were, an awful lot of regular moms would have supervised visitation, too!). It’s really going to depend on the type and severity of the illness, and whether or not the parent involved is seeking appropriate treatment.

Substance Abuse Issues

So, what if he’s addicted to some kind of substance – whether it’s drugs or alcohol or whatever? Well, that’s certainly relevant – but, again, it’s all down to what we can prove.

We can ask for drug tests, and they’re super accurate these days. We can do blood or saliva tests, in addition to testing hair and nail fragments. Depending on what we believe him to be addicted to (whether alcohol or opioids or whatever), a different drug test may be appropriate. It’s important to know as much as possible about both the substance to which he’s addicted and the available drug tests out there (which is where an experienced attorney can come into play) so that we can run those tests and prove that he has a problem.
Of course, keep in mind that these tests are often performed on both parties. If you’re asking for drug tests for him, chances are good that he’ll ask for drug tests for you, too. You better be prepared to submit to one, and you better come out clean, especially if you’re the one pounding on the table about it!

Keep in mind that even occasional drinking – especially if you tend to binge drink when you do drink – can show up in these things. If you’re getting wine drunk on the weekends, it could show up in your drug tests. So you’ll want to tread carefully, and have a realistic conversation with your attorney about what you might pop positive for, as well as how to combat that in the days and weeks leading up to your custody case.

What about criminal convictions?

A lot depends on the “when” and “what” of a criminal conviction. If he is convicted of a crime, ideally it would be one that would suggest that he’s not really fit and proper as a custodian. It’s not so much that I’m concerned about something like a DUI (though that may be a reason to suggest that the custody order include a prohibition against drinking while the children are in his care, or even to prohibit him being responsible for transportation, depending on the severity) or a minor theft charge, but something that relates to violence or problems with children.

It’s not always a golden ticket, though. I’ve seen/heard of cases where a child’s father was convicted of soliciting sex from minors or was even a registered sex offender where that didn’t mean that he ended up with supervised visitation where his own children were concerned. That may seem shocking, but there are a lot of factors involved. Specifically, when did it occur? If you knew he was a registered sex offender and then still had kids with him, it’s way less useful of a fact than if he was convicted of a sex crime AFTER the children were already born.

The court will look, too, at what happened to him criminally. It’s up to each judge to make a determination, and I’ve seen some judges who take a pretty harsh line on those things. I’ve also seen judges who seem to have a “he did the time” kind of attitude where his crime is concerned.

Is it worth mentioning? Certainly! If you’re worried about your kid’s safety, you have to do as much as you can to protect him or her. It’s part of being a mom.

It’s definitely worthwhile to gather as much information as possible, and to follow attorney advice as you begin to prepare for your custody case. After all, supervised visitation isn’t impossible to get – it’s just not as common or automatic as you might think. It’ll be important to work with an experienced custody attorney, and probably also to have someone like a guardian ad litem appointed to help the judge see the facts.

For more information, request a copy of our custody book, attend our upcoming custody seminar, or give our office a call at 757-425-5200 to schedule an appointment.