Parental Alienation in Virginia

Posted on Nov 11, 2015 by Katie Carter

Divorce is hard, but when you combine it with the emotional and completely volatile nature of a custody case, it’s exponentially worse. Obviously, custody isn’t always part and parcel of a divorce action; custody cases can take place completely independently of a divorce case. (Because moms and dads don’t have to have ever been married, or they can deal with custody issues even after divorce, because all things relating to the kids—custody, visitation, and child support—are modifiable until the child turns 18.)
No matter what, though, if there’s a custody case, there has been a breakup. Whether you were married to your child’s father or not, a custody case signals (1) that you’re not together anymore, and (2) that things are not exactly going smoothly. You don’t HAVE to go to court (or even negotiate an agreement) to handle custody, visitation, and support, but in many cases (especially where there are hurt feelings) it’s necessary.
Where there’s anger and hurt feelings, compounded on top of the normal momma bear feelings most moms have about their kids (especially when they feel worried that someone is going to take their kid away, even if only temporarily), there’s a recipe for disaster. When time with the kids goes from being classified as “family time” to “mom’s time,” and “dad’s time,” there’s a different competitive edge that didn’t exist before. There’s also a sense of loss of control, especially where moms are concerned. How does mom know that dad can change the diaper? Swaddle the baby? Provide appropriate food on a reasonable schedule? Maintain bedtimes and other routines? Does he even have an appropriate place for the child to sleep? What will he do with the child? And, even worse—what happens when he gets a girlfriend? Will he just let that woman be around his child? There are so many fear inducing unknowns that most moms facing a custody case have, in my experience, no trouble at all finding a whole host of things to worry about.
Ideally, you and your child’s father will be able to negotiate something that works for both of you when it comes to custody and visitation. (In fact, you really might as well negotiate it, because the reality we’re seeing lately, especially in contested custody cases, is that judges really like shared custody. LINK) Negotiation is often best, because it saves time and a whole lot of money that you would otherwise have had to spend on attorneys (you can just add up those savings and put the remainder in kiddo’s college fund). Even better, most of the time the people that we work with that have a say in negotiating their own agreements indicate feeling a lot happier with the final result than the ones who leave it all up to a judge.
If you and your child’s father aren’t in perfect agreement about custody and visitation, you should get a custody and visitation agreement in writing.
If you can get an agreement in place, I would. And, really, the sooner the better. Why? Well, in a lot of ways, an agreement protects you. When it comes to custody and visitation, especially when you and your child’s father aren’t exactly getting along swimmingly, things can be complicated.
To explain why having an agreement is so important, I’ll first have to explain to you how the courts make decisions when it comes to custody and visitation cases. Basically, the most important thing is the ten all-important “best interests of the child” factors. You have probably already heard of them, even if you haven’t spent a lot of time reading and understanding them. These best interests of the child factors are Virginia-specific, but most other states have something pretty similar that informs their decisions about custody, visitation, and support of minor children. These factors are important, and really can’t be understated. Just in case you haven’t had a chance to read them yet, here they are, in all their glory:
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 deems necessary and proper to the determination.
They don’t strike you as being on a level with the ten commandments? It’s not surprising, really. But, seriously, you should start to regard them that way. As far as custody cases go, at least in Virginia, these ARE the ten commandments.

Notice factor #6. We sometimes call it “the mom’s downfall”.

“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”.
Factor #6 is particularly important because, in my experience, when moms lose custody, it usually has something to do with this factor. It also has something to do, sometimes, with a mom’s failure to get their custody and visitation arrangement specified in writing.
See, there’s this thing called parental alienation. Basically, what it means is that one parent used his or her influence over the child to hurt the child’s relationship with the other parent. Most of the time, it happens unintentionally, when a child happens to overhear an adult conversation. Other times, it’s deliberate. Regardless, it’s something that the court is hyper aware of and sometimes really seriously undermines a parent’s case.
It’s easy to think, ‘Oh, he’s just a baby, he doesn’t understand what I’m saying,” but any time you talk badly about your child’s other parent in front of the child, you’re doing damage. And more and more often, courts are picking up on that kind of behavior and calling it parental alienation.
Factor #6 says that both parents should support the child’s relationship with the other parent. The risk is that, if you’re found to have alienated your child or hurt his relationship with his other parent, you could lose custody—it’s all there, in the factors. You need to be very, very careful, even if you think what you’re saying is innocuous, or that the child isn’t listening to you.

So, what does parental alienation have to do with getting a custody and visitation agreement set out in writing?

Good question. The reason to get a custody and visitation agreement in writing, like any other legal contract, is that you have proof of what your agreement is. It’s not a he said, she said type of knock down drag out fight, you have an agreement that clearly spells out what the two of you formally agreed to do. That’s helpful to a judge.
Remember, the judge is in a difficult position. He doesn’t know you or your child’s father, and isn’t really in a position to judge how honest or trustworthy you are. It’s frustrating to a judge to hear such different accounts from two people, and not be able to account for the discrepancies. You understand, of course, because it’s your life—but, if you go to court, the decision will be made by the person in the room who knows the LEAST about your situation. It’ll help to have your agreement memorialized in writing.
If we DON’T have a custody and visitation agreement in writing, what’s the worst that can happen?
Another good question. A lot of people tell me, “We’re getting along okay, so we’re just going to wing it.” I understand the sentiment—actually writing down and discussing the terms of your agreement can, by itself, be a reason for an argument—but I want you to protect yourself.
So, let’s imagine a scenario. You have the child most of the time, as mothers so often do. Dad asks for time to take the kid to do something that you don’t approve of or at a time when it’s really inconvenient to you or when you’ve already made plans to do something else, and you tell him no. Dad is angry, and feels like you’re unreasonably denying him access to the child. He files a petition for custody and visitation, and alleges that you’re alienating the child and denying reasonable visitation. If the judge finds that’s so, you’re in hot water. Maybe you won’t lose custody (it’s pretty rare for a good parent to totally lose custody), but you probably won’t be happy all the same.
Having an agreement ahead of time specifically defines who should have the child when. It removes the guesswork from the equation, and means that each parent knows that he and she has specifically designated times to do what he and she wants to do with the child. There’s much, much less risk of petitions being filed, because both people know what to expect and won’t fly off the handle because they were denied something that they really wanted to do. It’s really helpful.

We’re not getting along, and I don’t think we can reach an agreement. What happens next?

Still, all the time, people find their way to court, for whatever reason. If you and your child’s father can’t reach an agreement, that’s okay. Lots of custody cases go to court.
I can’t predict exactly what will happen there; no attorney can. It depends on the case, how the law can be applied to the facts, and the judge. Still, I can tell you that good parents don’t just “lose” custody entirely. In fact, custody cases are rarely a winning or losing proposition.
Most of the time, parents agree with respect to custody. When they don’t, and they have to go to court, we’re seeing a definite trend towards shared custody. It’s not the end of the world; not the end of the world at all.
Maybe shared custody doesn’t make you jump for joy. You had your heart set on primary physical custody, like most moms do. I understand. You should understand, too, that I’m speaking in generalizations here. I don’t know you or the details of you case, and things could very well turn out differently in your case. I’m just saying that, generally, what I see, as a worst case scenario, is shared custody. (Which is, in my opinion, considerably better than LOSING custody, wouldn’t you agree?) For information relating to you, in your unique circumstances, give our office a call or schedule a consultation with one of our attorneys by calling our office at (757) 425-5200.