Custody of School Aged Kids in Virginia

As a mother, you already know that, in terms of parenting, children present different challenges at different ages. From potty training to learning to read to learning to drive, you have to teach all sorts of important life lessons, carefully tailored to your child. You are responsible for turning your child into a productive member of society, and you have to exercise care and use your best judgment at all times.
It should come as no surprise, along those same lines, that coming up with a custody and visitation schedule that works at one age or developmental stage might look a little different than one than works for a child at a different age or developmental stage. A few weeks ago, we talked about what custody and visitation might look like for a newborn. For a detailed analysis, check out my article by clicking here. Long story short, though: it’s more difficult to have overnight visits with a baby than with an older child, particularly if that baby is breastfeeding. A lot of times, we suggest short, more frequent visits (sometimes even in mom’s house, if she’s comfortable having dad over) rather than prolonged visits.
Of course, what’s appropriate in your case may depend entirely on your child, and, as far as that goes, you definitely know best.

Still, it’s fairly common that two parents will disagree about what’s best for their child, with one parent asking for something that the other just doesn’t feel is age appropriate. Whether it’s a trip to Mexico or just an overnight visit, what is and is not appropriate has a lot to do with the age of the child (or children) in question.

Keep in mind, too, that there’s a big difference between what you can negotiate or mediate and what you’re likely to get from a judge in the courtroom. Generally, you have a LOT more freedom to write an agreement that suits your needs and your child’s needs on your own (with or without the help of an attorney) than you would have if you petitioned the court and left your case in the hands of a judge. Writing an agreement is great because you can make it as specific as you’d like. Remember that custody and visitation of minor children are ALWAYS modifiable based on a material change in circumstances (and the court thinks a lot of things are material changes, so it’s not too hard to argue that a material change has taken place). So, if you (like most normal, sane people) would prefer not to go back and forth petitioning the court every six months to a year until your child is 18, the time to negotiate a comprehensive agreement that can grow with the child is now—not later.

It is absolutely possible that your agreement can take into account what would be appropriate for the child at different developmental points, and expand gradually over time. The younger the child you start with, the more you’ll have to foresee. It’s difficult, but not impossible, so it’s important to start thinking now, not only about what you want custody and visitation to look like today, but what you can envision it expanding into as your child grows and matures.

Could you get exactly what you wanted if you asked a judge for it? Honestly, I doubt it. But judges will certainly be considering those all important best interests of the child factors (see below to read them in their entirety, in case you haven’t already), so what’s age appropriate DOES matter, and the judge will consider it. Still, it’s unlikely that a judge will take the time to listen to hours and hours of testimony about the particular child, his or her likes or dislikes, and subjective information about what might or might not be appropriate. It’s not that the judge doesn’t care; it’s more because there really isn’t time on the docket. The judge will do his or her best, but it’s more likely that you’ll end up with a more or less generic custody and visitation arrangement than a unique one that is custom tailored to your family’s needs.

Virginia Code § 20-124.3, “Best Interests of the Child” Factors

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.

So, let’s talk in a little more detail about what happens in custody cases that deal with school aged kids. If you can agree, then what? If you can’t agree, do you have to go to court? When can you change your agreement?

If we can agree on custody and visitation, what are our options?

If you and your child’s father can talk about custody and visitation, you will have a lot of freedom to negotiate and talk about what works best for you—all of you. If you can reach an agreement, you can avoid the courtroom entirely. If you’re getting along so far and everything seems to be working out just fine (of course, that doesn’t mean that you ALWAYS agree or that you share the same opinion the first time every time), there’s no reason you can’t work everything out between the two of you permanently—no court, no judge, no guardian ad litem required. Great, right?

If things are usually okay, but you there are a couple of hot button issues or places where you’re worried that you’ll have trouble reaching an agreement, don’t worry too much. Sometimes, even couples who ultimately agree have a little bit of trouble getting to that agreement. That doesn’t mean you’re going to have to go to court, but it might mean that an attorney or a mediator might need to get involved. (On the other hand, if you agree perfectly, you may not need to ever talk to an attorney or a mediator, let alone set foot in the courtroom.) Don’t be too hard on yourself, if you and your child’s father can’t agree right away. After all, tensions are running high and, emotionally, it’s difficult for both of you to think of any kind of arrangement that keeps you away from your child part of the time.

School aged children present issues that are unique. Because they have very specific schedules, it’s necessary to work more around their lives than ever before. When they were younger, before they went to school, it was more about your schedule. Not so anymore! You’ll have to deal with a whole host of issues—like long holiday breaks and summers off, snow days, picture days, school bus stops, and drop off and pick up times.

As far as getting an agreement regarding custody and visitation in place goes, you have a lot of options. You can do it yourselves, and either agree orally or in writing. Keep in mind that oral agreements are difficult to enforce later on. So, if your child’s father regularly doesn’t do what he says he’s going to do, relying too heavily on an oral agreement is probably not the best idea—unless, of course, you and your child’s father typically resolve conflict this way, and you feel comfortable relying on his word. As we’ve already discussed, you could also choose to hire an attorney or mediator to help you negotiate a custody and visitation arrangement.

Now that you know HOW you can reach an agreement (on your own, with a mediator, or with an attorney) and you have an idea what the agreement will look like (either oral, which is not recommended, or written), how do you know exactly what you should put in it?

I’ve said it before, and I’m sure I’ll say it again: the best custody and visitation arrangements are the ones that deal with the child as he or she is right this minute, but also allows for custody and visitation to change as the child grows and matures, and different things become more reasonable (overnights, vacations, whatever). Clearly, it’s not appropriate for the arrangement you work out for your kindergartener to carry through until the child turns 18. That’s just unrealistic.

How do you know what’s appropriate? Well, as the child’s parents, you probably have a better idea than anybody, but there are definitely guidelines that we use for kids at different ages. You may find them helpful, at least as you start out trying to have an idea of what you should be thinking when it comes to custody and visitation.

For most school aged children, overnights are a possibility. In many cases, particularly cases where mom has primary physical custody, parents choose to alternate weekends. Some parents choose to provide time in the summer so that they can take a vacation with the child—during which time the other parent’s visitation abates.

Other parents try different things, like week on/week off arrangements where the child spends one week living with mom, and the next living with dad. Still others split the weeks in half, or divide it into certain days that they share. Kids are surprisingly resilient, especially at that age, and can get used to all sorts of things. Of course, you should keep your schedules and your kid’s personality in mind as you start to think about what might or might not be appropriate, but you have a lot of freedom here.

A lot of parents wonder when it’s appropriate to start overnight visitation. Unfortunately, there’s no conventional wisdom regarding when a child is old enough to start overnights. I think that the best thing to do is let the child be your guide. In most cases, overnight visitation starts somewhere between the ages of 4-6, but it can certainly start earlier or later, if that’s what the parents choose. It’s probably best to start out with just one overnight at a time, and then gradually move up to weekends and longer periods of time.

Of course, a school-aged child means that you’ll have to think about school holidays and vacations, and determine how to handle each break. Of course, holidays will always be an issue—who gets Christmas and who gets Thanksgiving?—but you’ll have deal not only with what happens on the day of the holiday, but also what happens throughout the entire school break. Since most adult jobs don’t shut down for 3-4 weeks during Christmas, it can be difficult to figure out what to do with the daycare situation. It’s best to think about it now, before there’s a problem later.

What happens if we don’t live nearby, and can’t alternate weekends or weeks?

When parents don’t live near each other, it definitely presents problems. If that’s the case, obviously, having alternating weekends, or frequent, shorter-duration visits, just isn’t possible. In those cases, we typically see less frequent, longer visits. I’ve even seen agreements where one parent has the children during the school year and the other parent has them over the summer. Yes, the entire summer! That’s pretty extreme, but…it happens. It’s definitely something worth thinking about if you’re considering relocating—on top of the fact that, if the court even allows relocation, the relocating parent is typically held responsible for the costs of visitation. If you ALREADY live in separate areas, you’ll probably want to start thinking about how you’ll ensure that both of you have an adequate amount of time with the kids.

What if we can’t agree on custody and visitation?

In some cases, mom and dad just can’t agree. It’s definitely not ideal, but it happens. In those cases, there’s really no choice but to leave custody and visitation up to the judge.

It’s not ideal mostly because you lose the flexibility you had when you were negotiating the agreement between yourselves. Judges aren’t going to take a ton of time to listen to you, consider your schedules, and come up with a long, complicated, specific custody arrangement. They’re going to apply something general—like shared physical custody—and expect you to make it work. A judge won’t baby you, or spend hours and hours going over your case to make sure to get it right. Simply put, the judge will listen to you, but briefly, decide, and move on. After all, he (or she, of course) has a lot of other cases on his (or her) docket that also require his attention. He doesn’t have the ability to spend hours and hours belaboring the finer points of your particular case.

If you can’t agree, the court will help you establish something with respect to custody and visitation. It may not be everything you dreamed of, but it will be something—so, in a lot of ways, it will help you lay the ground work for co-parenting with your child’s father. It will describe the type of relationship you have to have, and it will hopefully mean that you’re able to settle some of the disputes that have been driving you crazy. But it won’t be perfect, and you need to prepare for that.

Okay, so now that we’ve agreed, it’s all set in stone, right?

Nope. Custody and visitation are changeable, based on a material change in circumstances. If someone gets a promotion, moves, or remarries, custody and visitation can change. You can either go back to court and petition based on your material change, or, if you and your child’s father are getting along, you can renegotiate custody and visitation—again, either orally or in writing. (I recommend writing.)
Custody and visitation can be tricky, but it’s pretty important to get something hashed out as soon as possible—especially if things really aren’t going that well with your child’s father. Keep in mind that you’ll be working together to co-parent the child until…well, until pretty much forever. (Because, let’s face it, parenthood doesn’t end when the child turns 18, graduates college, gets married, has their own child, or really, at any other time. It’s forever.)

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