Things can be especially tricky in that gray area between separation and the time that you and your soon-to-be ex are able to get a signed agreement or court order in place. Until that time – when you either negotiate and sign an agreement or go to court and the judge puts an order in place – you’re in a weird in-between space.
If you move out, always take the kids with you – especially if you have a domestic violence and/or safety-related concern.
If you move out, you should always take the kids – especially if you’re going to allege that your soon-to-be ex has been abusive towards you. From the court’s perspective, it just isn’t going to make sense that you allege he is such an abusive monster but then you left your children in his care.
Don’t deny dad visitation/parenting time with the kids.
But, then again, just because you’ve left doesn’t mean that you alone can make unilateral decisions for and about the kids. As far as the ‘best interests of the child’ are concerned, the court is likely to find that having access to – and contact with – both parents is incredibly important, so you’re going to want to facilitate that from the outset.
If you have concerns about the safety and well-being of your child while in dad’s care, especially in the early days of your divorce or separation, it’s not unreasonable to suggest that he come along for things while you are present. If you have concerns regarding your physical safety, you could do so in a public place or in the presence of a witness, like a close family member.
If I were you, I’d be very clear about the opportunities that he has. “I’m taking the kids to the park after school today, if you want to join,” or “We will be at soccer practice this evening at 6, if you want to see our son play.” He can ask for something else – like that you bring the kids to the former marital home – but there are no hard and fast rules here, and you don’t have to do anything that you don’t feel comfortable with or that doesn’t feel safe. If you did take the kids to the old house or apartment to see dad, you could still take your mom or other family member with you.
It’s probably unwise to move out and completely deny him any opportunity to see the kids, though that doesn’t mean that you have to go so far – especially in the earliest couple of days – as letting him take the kids without an agreement in place for unsupervised periods or overnights. I don’t think it’s wise to seem overly controlling, but there’s technically no requirement that he return them unless and until you have a custody agreement (or court order) in place. Especially where you have a concern regarding safety, you might want to wait to allow this.
Chances are very good – absent solid evidence regarding abuse – that he will have unsupervised and overnight periods.
If you’re willing to let him take the child(ren) for unsupervised and/or overnight periods, that’s great. (And, chances are, he’s going to get them eventually anyway.) In some cases, I’ve advised that my clients get a handwritten agreement for each pre-agreement time dad takes the kids that includes the amount of time that he’s supposed to have and when the child(ren) will be returned.
In Virginia, there is no mandate that custody must be awarded 50/50 between the parents; in family court, the judges are supposed to consider all forms of custody equally – shared custody, split custody, and primary physical custody – without giving preference to one form over the other. The reality, though, is that many judges want to start at something fairly close to a 50/50 split.
Custody is, unfortunately, often a long game. Many moms find that dads end up with a fair amount of time – more time that he ever seemed to want to have before – from the outset. The thought is that, while you were together, he may not have felt he needed to be quite as proactive in this way but, now that you have separated, divorced, or broken up, he’s going to need to be given the opportunity to parent in his own right.
In a custody case, everything is supposed to come down to the ‘best interests of the child,’ and it’s hard to separate the court from a belief that having a relationship with dad is one of the best and most important interests of a child. (Yes, even when the evidence suggests that dad is not the best, safest, or most conscientious parent.)
Custody and visitation is always modifiable, though, based on a material change in circumstances. I think this influences the court’s decisions, too, because it feels like it’s a ‘no harm, no foul’ situation where, if it doesn’t work out, mom can just petition the court to change custody. That, I think, ignores the real difficulty – personally and financially – associated with constant changes to the agreement(s) and/or court orders involved in a case.
Still, that’s often where moms find themselves – in a situation that they don’t really like, with no expectation of change unless they petition the court or renegotiate the agreement when the one that they already told the court wouldn’t work doesn’t, in fact, work.
It’s always a good idea to talk to an attorney one-on-one about the specific facts involved in your case.
Two things are true here. One is that it absolutely never hurts to talk to an attorney – or, if you don’t like that attorney and his/her advice, to get a second or even a third opinion – to make sure that you’re on the right track.
The other is that, in many ways, family courts and circuit courts (where divorces are handled) are fractured places that often miss the mark in major ways in divorce and custody cases. While we can lament the issues in those courts, we also have to operate within them. I have to give advice, on a regular basis, that I don’t like and don’t personally agree with because I know what the court is looking for. In many cases, one of the quickest ways to lose parenting time – which, obviously, as a safe parent, you do not want to do – is to look like you’re refusing to coparent with your child’s father.
It’s a complicated and nuanced situation, and no two cases are exactly alike. Your child’s father may be high conflict, a narcissist, or engaging in alienating/sabotaging behaviors. It’s important to talk to someone, sooner rather than later, about exactly what’s going on so that you can take the necessary steps to make sure that your child(ren) are as protected as possible.
And, yet, while I know that it’s not as reassuring as the court would like it to be, it’s important, too, to remember that custody is modifiable.
For more information, to schedule a consultation, or to register to attend an upcoming divorce or custody seminar, give us a call at 757-425-5200.