Do I have to have my own place to get custody in Virginia?

For most women, the period of time leading up to their custody case is one of upheaval. That’s not always the case, though; sometimes, custody can come up without being part of an underlying divorce or break up or whatever the case may be. For a lot of women, though, the custody case is triggered by something else—something like a breakup or a divorce—and that something else can lead to a little bit of instability in other areas.
Women ask me all the time whether they’ll need to get their own place to get custody and the truth of the matter is that it entirely depends on the facts of your unique situation. I’ll go into a couple of different common scenarios I see, as well as a brief discussion of what the family law court’s concerns would be if your case were to go to court with those facts.

1. “I’m living with my parents.”

Most moms, when things don’t work out with the father of their child, just go back home. It makes sense, of course—where else can you go when it seems like you have nowhere else to go? Who won’t charge you to live there (in many cases) and will also provide a safe place for your child—where he or she can continue to grow and thrive without too much interruption to the normal, day to day life? Obviously, mom and dad (or, as far as your child is concerned, grandma and grandpa) often fit the bill.
As far as the court is concerned, this isn’t really going to be an issue—unless there’s something wrong with grandma and grandpa that makes them unfit to be around the child on a day to day basis. If grandma is remarried to a sex offender, that might cause the court to pause and consider the appropriateness of the living situation, and also whether you, as the child’s mother, exercise good judgment. Of course, this is rarely the case; most of the time, grandma and grandpa are good, loving people who are more than appropriate to be around the child.
So, what if you’re living with your folks, and dad is living on his own? It doesn’t really matter; that doesn’t mean you will lose custody. One way or the other, it’s really not more or less advantageous to your custody case. As long as you have a safe, appropriate place to go, you’re good.

2. “I’m living with a roommate.”

I get it, Hampton Roads is a pretty expensive place to live. It’s harder still to afford by yourself, especially if you had grown accustomed to sharing living expenses with your child’s father. Between the costs of daycare and groceries and diapers and everything else, it can be cost prohibitive to afford your own space.
The only reason this would raise eyebrows is if, for whatever reason, your roommate (or her boyfriend or her children) somehow made the living arrangement inappropriate. Just by virtue of you having a roommate doesn’t mean that your living situation isn’t appropriate. If your roommate is a drug dealer, an alcoholic, a sex offender, or something else—there may be an issue. That probably isn’t the case, though; it’s probably just a friend of yours in a similar situation who could use to split the bills, too. And, as far as the court is concerned, there’s nothing wrong with that.
Be prepared, though, for your child’s father to ask questions about the fitness of your roommate. If there’s discovery conducted, there may be a couple of questions about his or her background (and, of course, a man may be looked at with more scrutiny, particularly if you and he may be involved in a romantic relationship—which probably would be viewed as inappropriate in front of the children) and history.
As a general rule, if you’re looking for a roommate, you’ll be better off sticking to another woman with no criminal history.

3. “I’m living out of my car.”

Now, as you can imagine, this might present a problem. In fact, I’m sure it would. If you don’t have a suitable place for the child (or children) to sleep, there’s a problem. Without a mailing address, the court will look harshly on you from the beginning; if it gets out that you’re living, or trying to live, out of your car, you’ll almost certainly lose custody.
You may get visitation, but you probably won’t get any overnight or weekend visitation if you don’t have a place for the child to sleep. You’re better off waiting to go to court until you’ve found a place to live. If you’ve got a court date coming up, you’ll want to find something—immediately.

If you’re living in your car or somewhere similar, you are essentially homeless.  Remember that the “best interests of the child” is the standard used here to determine whether a particular custodial arrangement will be good for a child.  The judge will look at where you’re living — and bring homeless is far from ideal.

4. “I’m living in a shelter.”

Again—this is probably not ideal. Though the court won’t punish you for having to go into transitional housing for a period of time, it’s going to be hard for you to win custody if you’re living in a shelter. As you can imagine, this doesn’t really provide a very stable environment for a child, and it’s difficult to argue that this would be better than living with dad—especially assuming that he has a house somewhere else where the children could stay.
As a general rule, the court is pretty flexible. The court isn’t going to pass judgment on you for doing what is within you means, whether that means you live in a trailer park or a single family home. The court will step in if, for example, you’re living out of your car, with a sex offender, or you don’t have room for the children to sleep. I’ve seen an eyebrow raised over children of different genders from different families (like, stepsiblings) sleeping in the same room or bed.
Air mattress? Not the end of the world. But the children should have a room and a safe place to sleep. That doesn’t mean that each child needs his or her own room or his or her own bed, but room and bed groupings should make sense based on the age and development of the child. Remember that the court is making decisions based on the best interests of the child standards, so the court (and the guardian ad litem, if one has been appointed in your case) will be looking at your particular living arrangements with these guidelines in mind.
You don’t have to live somewhere fancy; you don’t even have to live somewhere totally on your own. You do have to provide a safe, suitable, appropriate home for your child—whether that’s in a mansion or a trailer park.
For more information about family law or to meet with one of our attorneys regarding your upcoming custody case, give our office a call at (757) 425-5200.

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