The Beginning of Your Virginia Custody Case: Part One

When moms face custody cases, they tend to panic. The thought that they might lose custody of their kids keeps them lying awake at night, makes them burst into tears at random moments, and generally makes them nervous and paranoid.

In this two part article, we’re going to talk about how to plan at the beginning of your custody case, including goal setting, the vocabulary of custody cases, how the court looks at custody and visitation cases, how to protect yourself and your children during your custody case, and what happens when custody cases raise issues of abuse.

It’s absolutely understandable that you feel a little panicky, of course. When you suddenly and unexpectedly find out that you’re about to find yourself in the middle of a full blown custody case, it’s nerve wracking. It’s also probably pretty shocking, after you’ve spent years and years caring for your children (mostly on your own), to find that your child’s father has suddenly filed a petition asking the court to award custody of the children to him. Sure, he helped some before, but caring for the children wasn’t probably the number one priority on his list like it was for you. That’s pretty normal and, if your family situation is like this, you’re definitely not alone.

Strategically, the beginning of a custody case is incredibly important. The choices you make now are some of the most important decisions you’ll make, and you want to make sure you set the stage appropriately, so that no missteps prevent you from getting the kind of outcome that you want.

So, what kind of outcome do you want? What are your goals with respect to custody?

This is an important place to start. It’s easy to get emotional and have a reaction without stepping back to really think about what you expect from your custodial arrangement. I know—you want custody of your children. But do you know what that means?

Most moms admit, right out of the gate, that they want their children to be able to have a good relationship with their father. In most cases, dad is a pretty okay guy. Even though the relationship between the two of you didn’t work out, that doesn’t mean that he’s not cut out to be a dad. (Sometimes it does, and we’ll talk about that a little later.) But, still, for most parents, both parents are generally competent people who genuinely want to have a relationship with their children.

Just because he wants to spend time with the child doesn’t mean that he’s taking something away from you. Custody isn’t something that you either win or lose. The winner doesn’t get it all, or even always get his or her way. In fact, there’s really no such thing as a winner.

Let’s talk a little bit about the vocabulary of custody.

Primary physical custody

In a primary physical custody situation, the non custodial parent has 89 or fewer days with the child in a calendar year. Historically, this has been the traditional custodial relationship. Usually, we see an arrangement where dad (I say dad because normally it’s dad who is the non custodial parent) has every other weekend, Wednesday night dinners, and two uninterrupted weeks during the summer. This is probably still one of the most popular custodial arrangements, especially in cases where both parties agree to the visitation ahead of time.

Shared Physical Custody

In a shared physical custody situation, the non custodial parent has 90 or more days with the child in a calendar year. Shared doesn’t mean 50/50, though we do see 50/50 custodial relationships. Shared physical custody is a very flexible concept, and calls any arrangement shared where the non custodial parent has 90 or more days with the child in a year (so, dad could have 90 days, or he could have a full 182.5 if it were a pure 50/50 situation).

In cases where the parents end up fighting over custody, I have seen a trend towards judges awarding some kind of shared custody arrangement. One parent won’t “lose” custody and the other parent won’t “win,” but both parents will have to share the children according to some predetermined schedule.

So, what kind of custodial arrangement do you expect? If you were to set up a custody and visitation arrangement for you, your child’s father, and your children to abide by, what would it look like? What time do you want with the children, and what time will you allow your child’s father to have?

Most moms readily admit to me that they want their children’s father to play an active role in the upbringing of their children but, for some reason, when they separate from their children’s father, they suddenly want to fight tooth and nail for every single minute they can possible get for themselves. If I had to guess why they do this, when they all tell me how much they want their child’s father to be a part of their lives, I would say that it’s because with all the uncertainty a custody case brings on they feel compelled to hang on to their children tighter than ever. Deep down, they know that it’s best for everyone to have both parents be involved, but they have trouble seeing through the panic they feel.

If at all possible, have an open and honest conversation with your child’s father about what you’d like. Think about your jobs and schedules and your priorities, both together and separate. Talk to your child’s father about what each of you wants for your children as they grow up, and how the two of you can work together to accomplish your goals. This has a couple of different (but interrelated) benefits to you. For one thing, if you cooperate now, you’re more likely to reach an agreement, settle out of court, and save money that you would otherwise have had to spend on attorney’s fees. Secondly, by talking things out, you prevent the situation from escalating and, as a result, make it much easier for the two of you to coparent together. Just imagine how much more difficult it would be to swallow your pride and work together after you screamed insults at each other across the courtroom! Keeping things cordial helps you settle without going to court, save money, keep the peace, and, ultimately, keep your relationship in tact as much as possible so you can coparent together later on.

Take some time to really think about what you want out of your custodial relationship, what you want from your child’s father, and what will be best for your children. Keep in mind that the choices you make now will affect everything, from how contentious your case is and how much it costs to the most important consideration of all—how everything affects your children.

Factor Six

In Virginia, child custody decisions are made based on the so-called best interests of the child factors. They’re listed in the statute and can be viewed, in all their glory, here. I don’t want to talk about every single one of the factors in this article, though; really, I just want to address the one factor that many people who are experienced in Virginia custody cases have come to know as the mom’s downfall. Factor number six is, “[t]he 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.”

I just finished telling you how custody isn’t really a matter of winning or losing. That’s true, in most cases. However, if you withhold visitation from your child’s father, even if you think you have a pretty darn good reason for doing it, you could be opening yourself up to a world of trouble. Why? Well, really, it’s the same reason that the court is trending towards awarding shared custody, rather than primary physical custody. Judges in Virginia have articulated that they believe a child having two involved parents is in their best interests in almost every situation, so the judges tend to do whatever they can to promote both parents being active in the child’s life.

In cases where one party unreasonably withholds visitation from the other, many judges feel that a change in custody is warranted, especially where the judge feels like the other parent would more willingly and actively promote visitation. Of the cases I see where mom loses custody, many of them happen because, in the judge’s opinion, mom unreasonably denied visitation. Sometimes, it can happen innocently enough. I worry a lot when I hear moms say some of the following things.

“That’s okay, we don’t need a schedule. We’ll just wing it when it comes to visitation.”

Really, you ALWAYS need a schedule when it comes to custody and visitation. I know it sounds awful to plan ahead of time and make a “come hell or high water” kind of arrangement that doesn’t take into account anything that’s happening at the time. You can’t predict the future, how can you say that it’s okay for your child’s father to take this weekend or that holiday?

It’s tempting to come up with an arrangement where he just asks for the time he wants. Right now, you’re probably thinking that will be easier and more manageable than a situation where you divide the children’s every waking moment between the two of you in advance. But in most cases, it’s not. It’s really just asking for trouble.

You’re setting yourself up for a factor six case. No matter how reasonable you are, if you deny your child’s father visitation at a time when he felt like he should be able to have it, you’re inviting him to take you to court. If he asks for extra time and you have an agreement in place, you can say no much more easily. Not only that, but dad is less likely to feel like you’re being unreasonable or that he doesn’t have any time with the kids if he knows that he can just plan to do whatever it is that he wanted to do when he has time with the children. Knowing that he has every other weekend, for example, can go a long way towards promoting harmony between the two of you.

By all means, get a custody and visitation arrangement in place. It’s for your own protection.

“He can’t have the kids this weekend because he’s not paying child support!”

If your child’s father hasn’t been paying support, or he frequently pays support later than you feel is acceptable, that doesn’t mean you can deny him his regularly scheduled visitation. If he wants to see the children, you should absolutely let him. It’s not going to look good to the judge later if he takes you to court and you say that you withheld the children because he withheld support. In the eyes of the law, one has nothing to do with the other. You’ll look callous and calculating, and the judge will probably feel like you’re not really putting the best interests of your children first.

Don’t deny visitation just because your child’s father hasn’t paid you support, or he paid support late.

Giving up spousal support for custody

Another red flag I see is when moms talk about waiving their right to receive spousal support in exchange for their child’s father’s agreement to give up custody. On the surface, to many moms, it sounds pretty good. The most important thing to them is getting and keeping custody, and they’d do anything just for that one thing. After all, don’t attorneys always say that this is a negotiation? Set your goals, and figure out what you have to do to accomplish them. Right?

Well, in many cases, that’s true. However, when it comes to custody, it’s really not wise to give up something that you might be entitled to in exchange for custody. The reason why is that custody, like child support and visitation, is always modifiable based on a material change. Spousal support is generally not modifiable, especially if you sign a document waiving your right to receive it.

What can happen in these types of cases is that, once mom signs something waiving her right to receive spousal support, dad comes back and petitions for a change in custody. He may not get it, of course, and he’d have to demonstrate that there was a material change in circumstances to justify his filing a petition, but it’s still a possibility. I have heard horror stories about moms who waived spousal support and then ended up barely able to make ends meet. Dad, of course, remarried and filed for a change in custody and, was looking far more financially and personally stable by then, so he got custody.

Don’t give up something that you are financially entitled to based on your child’s father’s pledge to let you have custody. Anything pertaining to your children is always modifiable until they turn 18. Why? Again, it’s because the court uses the “best interests of the child” standard when dealing with minor children. It is in the child’s best interests to receive the benefit of both parents at the peak of their earning potential. When things change, the custody, visitation, and support have to change so that the children can reap the benefits.

Why isn’t spousal support modifiable? Because the court views it in the exact opposite way. While the children are entitled to the benefit of both of you at your best at any given moment, you’re only entitled to receive the benefit of what you and your husband had in your marriage. If you waive spousal support, you can’t go back and get it later—you gave it up. His change in circumstances (whether he now earns more money or has petitioned for custody when he said he wouldn’t) doesn’t change the fact that you gave up the right to receive support when you had the opportunity to ask for it.

Stay tuned for part two in this series, which deals with what you should do in custody cases where abuse is an issue. For more information about custody cases, or to schedule a confidential one hour consultation with one of our attorneys, please give our office a call at (757) 425-5200.

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