Custody of Teenagers in Virginia

You’re a mom, so I’m sure I don’t have to tell you that children present very different challenges at different developmental stages. You probably remember the thrill (and challenge) of teaching your child to read, tie his shoes, and make his bed in the mornings. Depending on the age of your child now, you either vividly remember or are actively fearful of driving lessons. Throughout your child’s life thus far, you have had to teach all sorts of important life lessons, each carefully tailored to your child.
You have to think about the age and developmental stage of your child as you begin to think about what might be appropriate in terms of a custody and visitation schedule. 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, so it’s a little different figuring out what will work for a teenager as opposed to a school aged child. In a lot of ways, it’s more difficult, but, at the same time, it’s a little easier where teenagers are concerned. Let’s discuss your options and how custody of teenagers in Virginia is normally handled.

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. We also talked about what custody and visitation is like for school aged kids, which also presents certain challenges.

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 the senior trip to Mexico, a beach week trip chaperoned only by dad, stay away summer camps, or study abroad, what is and is not appropriate has a lot to do with the age of the child (or children) in question. The more you and your child’s father begin to talk about these things now, the better prepared you’ll be to handle them when the time comes.

Ideally, you’ll be able to negotiate an agreement. Keep in mind that there’s a definite difference between what you can negotiate or mediate and what you’re likely to get from a judge in the courtroom. When you write an agreement, you can make it say pretty much whatever you want. With a judge, you won’t get much of a say in how custody or visitation are handled. Writing your own agreement, obviously, is preferable, because it allows you to take into account your needs and the needs of your child when you’re considering how custody and visitation should be handled. Depending on how you decide to go about things, you can negotiate an agreement on your own, or using the help of a trained mediator or attorney.
We like to advise our clients, whenever possible, to negotiate an agreement that takes into account what is appropriate for their child in the here and now, and also attempts to grow and expand as the child gets older and different things become appropriate. As you can imagine, with a newborn or a school aged child, things can change rather dramatically over time. Most of our moms feel (like normal, sane people often do) that it’s best to avoid court as much as possible, choosing instead to at least attempt to negotiate an agreement that will grow with the child. Since things can be modified with a material change in circumstances, you don’t want to be brought back to court every six months to a year until the child is 18. Obviously, the younger the child you start with, the more you’ll have to foresee. With a teenaged child, though, this is a much easier thing to think about.

A person with a young child has to envision the agreement from that age all the way up to 18; you have far fewer years to navigate. That’s a good thing, and it makes your job a lot easier in a lot of respects. Though you may want to handle a 13 year old a little differently than a 17 year old, you don’t have to worry about nearly as many details as if you had a 4 or a 5 year old child.

Could you get exactly what you wanted if you asked a judge for it? Honestly, I doubt it. People rarely get exactly what they ask the court for. But judges will certainly be considering those all important best interests of the child factors (see below to read all ten of them, in case you haven’t yet), 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 can’t devote the time and attention that you might want. In all likelihood, you’ll end up with an arrangement that is more generic than what you might be able to draft on your own behalf.

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 teenaged 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 what you’d like to see happen, you’re definitely ahead of the game because if you can reach an agreement, you can avoid the courtroom entirely. How do you know if that’s a possibility? Well, gauge based on how things seem between the two of you now. 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 right away), 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.

A lot of times, things seem contentious at first. So, if there are a couple of hot button issues that are worrying you, that’s not the end of the world. It definitely doesn’t automatically mean that you’re headed towards a litigated case. A lot of couples who are able to reach an agreement eventually struggle to get there at first. That’s okay, and it doesn’t mean you have to go to court. Sometimes, it’s enough to just get a lawyer or a mediator involved. Don’t be too hard on yourself, if you and your child’s father can’t agree right away. Remember that tensions are high, and it’s emotionally difficult for both of you to consider alternatives that are less than everything you wanted.

Teenaged 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 played sports and started dating, 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, practices, rehearsals, concerts, and games.

As far as getting an agreement regarding custody and visitation in place goes, you have a lot of options. You can reach an agreement on your own, and either agree orally or in writing. As you can probably imagine, oral agreements are trickier to enforce than written ones. So, if it’s normal that your child’s father doesn’t do the things he says that he is going to do, its probably not a very good idea to rely too heavily on an oral agreement. If, on the other hand, you and your child’s father typically resolve disagreements this way and you’re comfortable relying on him to do what he says he’ll do, it’s probably okay. Alternatively, you could also use an attorney or a mediator to help the two of you negotiate or mediate an agreement, while still keeping it out of court.

Now that you know HOW you can reach an agreement (on your own, with a mediator, or with an attorney) and you know that the agreement can be entered into orally (even though that’s probably not recommended) or in writing, how do you know exactly what you should put in it?

I’ve said it before, and 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 now, and also allows for custody and visitation to change as the child gets older and different things become more reasonable (vacations, study abroad, whatever). Since you’re dealing with a teenager, it’s a little easier for you. But, still—what’s appropriate for a 14 year old is probably not what’s most appropriate for a 17 year old. If, on the other hand, the child is 16 or 17 now, you don’t have that long before the child turns 18, so you might not want to waste a whole lot of time worrying.

How do you know what’s appropriate? Well, as the child’s parents, you probably a pretty good idea, 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 teenaged children, there’s a lot of flexibility. We usually tell our clients that, with children this old, it’s best to hold on with an open hand. It’s tempting to insist on primary physical custody but if the child is having a difficult time with the divorce (and has a driver’s license), he or she has a greater degree of control over the situation than you may like to think. Many judges won’t listen to children at all (because, in their view, it’s inappropriate to involve a child in this type of litigation, and they aren’t capable of giving an opinion anyway). Some judges will allow kids to testify, or will take them back in their chambers to talk to them one on one, particularly if the child seems mature and capable of making the decision. It’s up to the judge, so there’s no way to know ahead of time exactly what might happen in your case. Still, is that an experience you want your child to have? For many, it can be damaging.
Many parents let their kids determine what custody and visitation is going to look like. After all, who wants an unhappy teenager living with them? Besides, once they have a driver’s license, it can be difficult (if not impossible) to make them stay somewhere they’d prefer not to stay. As long as you and your child’s father are communicating (so you don’t both assume that the child is with the other parent when in fact he or she is off with friends or making questionable decisions), it can be fine to let the child be your guide.

In other cases, though, parents agree to a custody and visitation schedule like any other. 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 doesn’t have visitation.

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. 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 teenaged child also means that you’ll have to think about school holidays and vacations, and determine how to handle breaks from school. 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.

What happens if we don’t live nearby, and can’t alternate very easily?

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.

If you’re considering relocating, you should definitely think about what that will do to your custody and visitation options. Keep in mind, too, that judges don’t very easily allow relocation and, even if they do, the relocating parent is typically responsible for the costs of visitation.

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 live apart from each other already, you’ll probably want to start thinking about how you’ll handle it.

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

In some cases, mom and dad just can’t agree. It happens. In those cases, you really don’t have another choice but to let the judge decide.

When you litigate you don’t have nearly as much flexibility as you would otherwise. 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. Even if he (or she) wanted to, there’s no time in the court’s docket! They’re going to apply something general—like shared physical custody—and leave the rest up to you. A judge won’t spend hours and hours going over your case to make sure everyone is happy. The judge will listen to you, but briefly, make a decision, and move on. After all, he (or she) has a lot of other cases on his (or her) docket that also require his attention.

If you just can’t agree, the court will order something with respect to custody and visitation. It may not be everything you dreamed it would be, but it will be something. In many ways, having the framework for custody and visitation ordered helps some couples lay the groundwork for co-parenting. Because there’s little to no choice over the arrangement, it somehow becomes easier to just accept it and move on.

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

Unfortunately, no. Custody and visitation are always modifiable when there has been 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 on your own, without the judge—again, either orally or in 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.
For more information, or to get some help negotiating or litigating a custody and visitation arrangement for your teenaged child, give our office a call at (757) 425-5200.