Even though not all parents stay together forever, not all parents need to go to court to have a custody and visitation arrangement set in stone, either.
In fact, lots of parents are ultimately able to decide among themselves (or just let things work out on the fly). Of course, there’s no right or wrong way to parent, and it can often be an evolving process. What worked when your child was an infant might not always work and, at some point, you may be grateful for the intervention of a judge or an attorney who can help you figure out what you should do.
Obviously, your biggest concern is whatever is best for the child (or children) in question. That’s the judge’s concern, too. In fact, when it comes to any custody and visitation type case, the judge (and the attorneys and the guardian ad litem, if there is one) are concerned with the “best interests of the child,” as defined by the Virginia code. In case you’re not already aware, there are ten factors that, according to Virginia law, make up the things that are in a child’s best interests:
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.
How do most parents manage custody and visitation if they’re no longer together?
I don’t have any statistics on exactly how many parents litigate or negotiate custody arrangements versus those that just handle it on their own, but I would imagine that a fair number of parents just kind of “wing it” when it comes to custody and visitation.
If you and your child’s father can agree about how custody and visitation should be handled, you might feel that there’s no reason at all to enter into an agreement or go to court to litigate over a specific custody and visitation schedule. Other parents, who DO work with lawyers, don’t want to commit themselves to an overly specific custody and visitation schedule and instead include language that says that the non custodial parent can have “reasonable and liberal visitation”.
What does “reasonable and liberal” mean?
That’s a good question. Basically, reasonable and liberal means that the custodial parent allows the non custodial parent enough time that he/she is mollified, and doesn’t turn to the court to litigate over getting extra time.
It’s a loosey goosey type thing; there’s no specific definition. So, by it’s very nature, it’s a little risky. Because who says that it’s working–or that it’s not? Who gets to say that this is enough custody and visitation, but this is not enough?
For some parents, this might be all the explanation that you need. Reasonable and liberal may be fine. You may never run in to any problems at all. You may be able to coparent effectively for months and even years to come, and not feel like anything is amiss. And maybe it’s not. Maybe, for you, reasonable and liberal is perfect. But it’s not perfect for everyone, and that’s usually where I get involved.
These people who have beautiful “reasonable and liberal” agreements, or who have no agreement at all and get along swimmingly, are not people that I regularly come in contact with. When I meet them, out and about in public, I tend to feel like these people are kind of like unicorns. Maybe that’s my bias, but I can’t help that I don’t see happy people who have worked everything out to their mutual satisfaction.
Why wouldn’t I want reasonable and liberal? It benefits me, doesn’t it? And–furthermore–no agreement at all sounds pretty awesome to me.
Well, there’s definitely some risk there. And the risk comes from the lack of official interpretation about what “reasonable and liberal” really means. Your definition and your child’s father’s definition may be very, very different things.
Remember how we talked earlier about the ten “best interests of the child” factors? Go back and re-read factor 6.
No, wait, I’ll provide you the text here. It’s that important. Factor #6: “[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”.
We sometimes call factor #6 “the mom’s downfall.” It can come up in a case where there’s no custody and visitation agreement, or where visitation is defined as reasonable and liberal. Basically, what can happen is that, if dad isn’t happy with the visitation he is receiving, he can make an argument to the court saying that you have unreasonably denied him visitation. That you are interfering in his relationship with the kid. That he has requested things that you have denied.
We could have a whole long, drawn out discussion about whether judges are jaded, or whether there’s a prejudice or disadvantage towards moms in the courts these days. It’s neither here nor there, really, and my only point is that, if you proceed without outlining or defining appropriate custody and visitation, you’re placing yourself at risk.
Is dad’s argument legitimate? Will he win? Could he take custody away from you? I couldn’t say. At least, not based on the bare bones facts we’ve discussed in this article. It depends on the severity of your case, the feelings of the judge, the evidence presented at court, and whatever other factors come into play.
Whenever there’s room for interpretation, there’s room for one side or the other to start feeling dissatisfied, which is an invitation for litigation. (Or, at least, it seems that way based on my experience.)
So, what should you do to avoid unnecessary litigation in your divorce and custody case?
Remember that the court has authority of your child (including custody and visitation) until the child turns 18. If you start fighting about custody and visitation early on in the process, you can find yourself brought back to court over and over again before your child becomes a legal adult. I don’t need to tell you that it’s not exactly an ideal situation.
To avoid having to go to court over and over again, and also to avoid the hurt, resentment, anger and bitterness that can result from a case litigated over whether one parent is unreasonably denying access to the child (or, worse, alienating affections), it’s best to have a specific custody and visitation agreement in place.
I like specifics. They make me feel safe, especially in custody and visitation cases. It’s best, even though it may feel difficult at first, to spell everything out with as much specificity as possible.
The more specifics, the better. In the best agreements, we try to make sure that they’re designed to grow with the child. Because, as you probably already know, what’s appropriate for a newborn might not be what’s appropriate for a school aged child, and is certainly different from what works for a high school aged kid. There’s a wide range of things that might be acceptable or unacceptable, depending on the age, experience, and maturity of the child.
The best agreements take into account where the child currently is, and grows to deal with any expected changes over time. Of course, you don’t have a crystal ball, and it may or may not be possible to anticipate every possible change. Still, to the extent that you can, it’s best to contemplate the possible changes. The ways, for example, that overnight visitation can change, or how both parents might like an opportunity to take a vacation with a child. Even the sharing of expenses matters–because a two year old isn’t driving, but you might want help with the child’s car insurance expenses once he/she turns 16. Not only that, but some extracurricular expenses can be tremendously costly, and if you anticipate that ahead of time and reach an agreement about how to share them, you’re more likely to wind up happy with the outcome.
Of course, it may seem like an uphill battle at this point. Or it may seem like poking a dragon, depending on your case and where you are right now. Why would you needlessly antagonize someone when things are working just fine? Or, how can you talk to him at all about it, when talking to him was impossible before (and a big part of the reason you broke things off)?
It’s a fair question, and ultimately it’s up to you to make the best decision for yourself and your family. If it’s worth it to you to take the gamble, go ahead.
How can I get an agreement in place?
There are a couple of things you can do, if you’re interested in putting your custody and visitation agreement in writing. You can either (1) negotiate an agreement on your own, or (2) go to court and let a judge decide.
Negotiating your agreement
Just like you can negotiate a separation agreement in a divorce case, you can negotiate your custody and visitation agreement in a custody case. You can do it on your own, with a mediator, or with an attorney–again, just like in a separation agreement case.
The major advantage of negotiating an agreement on your own is that you have a lot of freedom to make your agreement whatever you need it to be. You can specifically mention things that are important to you, and also go into as much detail as you’d like. You can take time to talk things over or negotiate back and forth.
Not only that, but it’s generally far cheaper to reach an agreement than go to court.
Going to court
Letting a judge decide how your custody and visitation will be handled is always a little risky, because you just don’t know how he feels about you until it’s too late. The judge can make an order quickly, without too much thought to the things that are important to you. He (or she) is also usually unimaginative, providing a relatively generic agreement, rather than spending a lot of time talking to the two of you and figuring out a unique and specific custody and visitation arrangement that works for the two of you.
If your custody and visitation case is in front of a judge in the juvenile court, that decision is appealable to the circuit court. That’s good news–it means that, if you’re surprised by a bad result, you can always appeal it up to the circuit court and get a do-over. Of course, that’s not free; if you’ve hired an attorney, you’ll continue to pay the attorney, and it can take awhile to get a trial date (and you probably already waited several months to get the date in juvenile court anyway), but it does mean that it’s possible to try again if you’re unhappy with the result. (Though the lower court’s decision will be binding until your new trial date.)
You have some options available to you, if you decide to set things down in an agreement rather than just winging it. Don’t let me sway you either way; ultimately you know your chidlren and your child’s father better than anyone, and you can definitely decide for yourself which road to travel.
If you get in a bind later, though, we’re here to help. We’re experienced in handling custody and visitation cases, both in court and by agreement. For more information, to attend one of our custody seminars, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.