Special Issues in Custody Cases

Posted on Apr 30, 2014 by Katie Carter

Custody cases can present special issues that have to be addressed at trial. Usually, we use expert witnesses, people who have expertise in a particular area through education and/or training, to help educate the court about an issue and provide an expert opinion. If your case presents a special issue, it is important that you’re prepared to address the issue and educate the court, so that the court doesn’t make an uninformed decision regarding your particular issue.

A lot of times, in cases where a special issue is presented, we encourage our clients to consider collaboration or mediation as an alternative to litigation, because it may allow you to better address the unique needs of your child and your family. Litigation tends to lead to more “cookie cutter” type results than custom-tailored solutions like you might be able to negotiate with your child’s father.

Here, we’ll discuss some common special issues that show up in custody and visitation cases, including breastfeeding, homeschooling, special needs children, abuse, relocation, and same sex parents.


Courts don’t automatically support the importance of the breastfeeding relationship, so you shouldn’t just assume that, because you’re breastfeeding, the court will make a custody and visitation ruling in your favor. A lot of times, judges don’t know a lot about breastfeeding, and don’t even know that it’s really an issue. So many babies are bottle-fed that some judges legitimately don’t understand why this is such an issue. Other judges tend to think that moms can bottle and store breast milk indefinitely, so the fact that a child is breastfeeding isn’t all that relevant to making the custody and visitation determination.

If you are involved in custody or visitation litigation over a child who is nursing, you will have to employ an expert to demonstrate to the court (1) why breastfeeding is important, (2) mechanics of breastfeeding, (3) the role of breastfeeding in the child’s ability to form important attachments with both parents, and (4) weaning.

You may need to employ a number of different experts, including a pediatrician, a lactation consultant, and even an attachment expert to address the role of breastfeeding in a child’s healthy development. These expert witnesses cost money, but they’re often necessary in litigation when the court needs to be educated on important issues.

For more information on breastfeeding as an issue in custody and visitation proceedings, feel free to read Kristen Hofheimer's law review article on the subject by clicking here. It's informative, smart, and provides a lot of the information you'll need to start considering if you're facing this type of custody case.


Homeschooling is legal in Virginia, like in every other state, so it really only becomes an issue when one parent wants to homeschool the child and the other does not. When parents share joint legal custody, as is almost always the case, they are supposed to collaborate and reach a consensus regarding the child’s educational upbringing. When one parent has sole legal custody, on the other hand, he or she has exclusive decision making power regarding the child’s education, and can do so without input from the child’s other parent. If the other parent feels that the custodial parent is making poor decisions for the child, he or she can petition the court from a change in legal, or even physical, custody, and only has to show that there has been a material change in circumstances since the entry of the last order.

If you’re homeschooling your children and your child’s father is fighting you on it, you’ll have to defend your position by showing that your children are doing well academically, socially, and developmentally. You’ll probably want to use an expert witness to talk about the benefits of homeschooling, or about homeschooling and socialization.

To show academic success, if you can demonstrate that your child is succeeding on standardized tests, you shouldn’t have a problem demonstrating that, academically, your child is doing well. If you don’t support standardized testing, you can put together a portfolio or video displaying how you homeschool and what your children are learning. If necessary, you can even have an educational psychologist perform an assessment to help show your child’s academic success in the homeschool environment.

Socialization is a major issue for lots of people when it comes to homeschooling, so that’s something you’ll want to be sure to address. There have been a number of studies demonstrating that homeschooled children as socialized as well or better than their public and private school peers. You’ll want to show the court what activities, homeschool groups, field trips, etc. your children are involved in and how they have opportunities to interact with peers and engage with different types of people.

The court will also want to know that you’re meeting your child’s developmental needs. You’ll want to show that your child is getting exercise, that he or she has a routine, and you may want to prepare a chart or graph to show your child’s routine, participation in household chores, and anything else you think may be helping your child’s development.

Special needs children

If your child has special needs and you and the child’s father are not in agreement regarding the severity of the child’s needsor the proper course of treatment, you may need to have a child specialize in court to testify about your child’s specific needs. It may also be necessary to bring in a physical therapist, speech therapist, or occupational therapist, as well as a special education teacher or any other professional with whom your child works. Testimony about the child’s needs and scheduling concerns which may affect custody and visitation can be incredibly important. You may also want to bring an expert on your child’s specific condition to talk about recommendations and prognoses.
For your part, you may want to compile a video for the court of a “day in the life” to show what the realities of parenting a child with your child’s special needs is like and how you work with your child to meet those needs.


Most abuse is incredibly difficult to prove, so you should be aware that if you’re pursuing a custody case on the basis of abuse, you’re probably in for a very long, very hard road. Don’t assume that you’ll get custody just because the child’s father was abusive, either to you or to the child.

The courts are jaded. They’ve seen a lot of people cry wolf, so it’s not unusual for the mother to be accused of trying to undermine the child’s relationship with the father by claiming abuse.

No matter what, you’ll need to tread carefully here. Without solid, concrete proof, it can be difficult to convince the judge that contact between the child and her father should be limited. If at all possible, you should consult with an attorney immediately, before you make any potential missteps that might undermine your credibility with the judge or the Guardian ad litem.

As with most of the issues discussed here, an expert may need to be called. A lot of times, in cases like these, we use therapists. We can have therapists conduct examinations on the parents, or even examine the child herself, if need be. Experts can be critical to gathering and presenting the necessary evidence needed at trial.


Relocation, whether you’re talking about moving out of the state where the other parent lives, or a considerable distance away within the same state, is tricky. In Virginia, you have to demonstrate that the move is in the best interest of the child, independent of any benefit that the proposed move may provide to the custodial parent. What does that mean? Well, simply put, you’ll have to use the 10 all-important custody factors (link) to show why the move is in the best interests of your child. You’ll have to show some pretty incredibly significant benefits, too, because you’ll have to show that wherever you’re planning on moving has some benefit that outweighs the benefit of living in a place where both biological parents can play an active role in the child’s life. That’s a very, very tall order. The benefit to you, on the other hand, is irrelevant. (Most parents want to argue that, because of their improved economic opportunities, the child will benefit. That may very well be, but that’s not good enough for the court.)

To show how the move would be in the best interests of the child, it’s a great idea to really research the area. Be able to show pictures to the court of the neighborhood where you’d live, the school the child would attend, the church, daycare, or other areas that may be of importance to the child after the move. Talk about the quality of life and the education available, as well as the sports or other activities that you could enroll the child in.

Equally important, you should also propose some kind of visitation schedule for the non-custodial parent that offers enough time that the non-custodial parent’s relationship with the child isn’t significantly affected.

Same Sex Parents

It’s not really a secret that Virginia is a pretty conservative state. And it probably also doesn’t surprise you that, currently, the Virginia law that exists on the books is not exactly friendly to gay parents. The most recent Virginia Supreme Court decision regarding custody, when the proposed custodian was in an active same-sex relationship, held that the lesbian mother shouldn’t have custody of the child because the conduct inherent in the same sex relationship (sodomy) was illegal, so the mother was engaged in illegal activity. Because of her illegal activity and growing up in a lesbian household, the court reasoned, the child may suffer from social condemnation, so the lesbian mother wasn’t a suitable custodian for the child.

Even though Virginia has kept its sodomy statute, times are changing. In Lawrence v. Texas, a case in the United States Supreme Court, the court ruled that laws can’t prohibit consensual sodomy between adults. This means that the Virginia case no longer applies, because the court denied the lesbian mother custody by virtue of her participation in illegal acts of sodomy, but the Virginia Supreme Court hasn’t heard another case like it since then. In the (relatively) near future, this is probably an issue that the Virginia Supreme Court will have to revisit, but it hasn’t shown any inclination to do so yet.

I think that, these days, judges (even Virginia judges) are probably much more interested in which households are more focused on the needs of the child, rather than the sexual orientation of the parents. If this is an issue in your case, you’ll have to put on a full custody case, emphasizing the 10 all-important custody factors and how you plan to meet the needs of the child (link), without focusing solely on the issue of sexual orientation.

You may also want to use an expert witness in a case where sexual orientation is at issue to talk about the fact that children who are raised in same-sex households are not “turned gay” just because they’re raised by a gay parent, but you’ll also have your own opportunity to talk about your child, your parenting style, and the decisions you’ve made in the child’s care and upbringing to foster the development of the child.

These issues certainly make an already difficult custody and visitation case that much harder, but with knowledge of the law and careful preparation, there’s no reason to give up hope. Ultimately, you have to advocate for what you truly believe is in the best interests of your child, no matter what.

If you’d like to talk to one of our custody attorneys, please give our office a call at (757) 425-5200.

If you’re interested in pursuing a custody case without hiring an attorney, you may want to look into our custody seminar, Custody Bootcamp for Moms. It’s an intense, all-day, heavy duty seminar for moms who, for whatever reason, decide to handle their custody cases on their own. Do you have what it takes? Find out here.