Homelessness and Virginia Child Custody

Posted on Apr 24, 2017 by Katie Carter

When things don’t work out between you and your child’s father, it often leads to a tumultuous transitional period. Whether you were married or not, separating often means finding a new place to live. Depending on your socioeconomic and employment status, finding somewhere new may be a more difficult proposition for you than for others in your situation. After all, not everyone has family or friends they can call on if they get in a sticky spot; especially for military families when they suddenly have to leave base housing, there can be serious housing-related difficulties that come from breaking up with your child’s father. As you can probably imagine, being homeless is definitely an issue when it comes to child custody in the Virginia courts.

Homelessness and Virginia Child Custody

Courts in Virginia use the “best interests of the child” factors to determine what type of custodial relationship would be in the child’s best interests under a particular set of circumstances. Though I think it’s safe to say that the court isn’t going to discriminate unfairly against you for not being quite as affluent as your child’s father, there’s a difference between being able to provide all the Xbox games your child’s heart could possibly desire and being able to provide a roof over their head and warm food for their tummies.
Courts make all decisions related to custody and visitation based on the best interests of the child, and they use the ten statutorily defined factors as their guide to just what, exactly, is in a child’s best interests. In case you haven’t had a chance to check out the factors (trust me, you should; they’re pretty all important), here they are:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deem necessary and proper to the determination.

Homelessness will almost certainly affect your bid for custody, especially if your child’s father isn’t homeless. It’s not that the court has unrealistic ideas about what’s necessary to raise a child; a court won’t generally, for example, require that a child has his or her own room or even necessarily his or her own bed. (In fact, I’ve seen cases where one parent has kids on air mattresses.) Even though I guess anything can technically happen once you get in front of a judge, for the most part, judges are understanding that different parents have different socioeconomic levels, and what they can provide might not necessarily be quite equal.
It’s only in extreme situations (like where one parent is homeless) where a court would start to take notice. In many juvenile and circuit court custody cases, a guardian ad litem is appointed to represent the interests of the child; guardians ad litem are required to make home visits. It would certainly “get out” at some point during your custody case if you didn’t have a home for the children, and that would almost certainly result in your child’s father receiving primary physical custody and you receiving visitation.

I’m homeless, but I don’t want to lose my kids. What can I do?

You’ll want to secure adequate housing before your custody trial takes place. Adequate housing means that you have somewhere to live (and that probably doesn’t include temporary housing, like a shelter) consistently. A car isn’t good enough; you’ll need a permanent address, and probably utility bills to prove it.
It’s okay to move in somewhere with a roommate, though you’ll want to be sure that the roommate you select doesn’t have a violent criminal background or something similar. As a general rule, it’d be wise to avoid someone with an addiction to controlled substances, a violent criminal, or a sexual predator. That should go without saying, but—just in case, I’ll mention it anyway. You probably won’t want to move in with a boyfriend, though; it sends the wrong message to the kids and, if your child’s father objects, the court might feel compelled to do something about it (like disallow you having overnight guests of the opposite sex when the children are in your care).
If you’re living with a family member, that’s probably fine. Again, it’s best if they don’t have a drug or criminal background.

I’m homeless and I lost my kids. What can I do now?

You’ll want to secure housing, but then you should re-petition the court to determine custody and visitation based on a material change in circumstances. Your new housing would likely qualify as a material change, and you can take your child’s father back to court to redetermine custody and visitation. Since the court’s objection to your having custody before was based on your lack of a permanent address, chances are that custody and visitation will be restored once you’re able to secure permanent, stable housing.
Homelessness is not an ideal state when you’re hoping to get custody of your kids. Though there may be very little you can do to help it at some point, you’ll want to do all you can to secure permanent housing before your custody trial. For more information, give our office a call at (757) 425-5200. We can help you schedule an appointment or give you information regarding how to apply for a scholarship to our Custody Bootcamp for Moms custody seminar.