Virginia Divorce with Young Children

Under the best of circumstances, divorce is a difficult proposition. When you’ve got young children, though, divorce is doubly difficult. Even though all the research suggests that many young children bounce back quickly after divorce, there’s no question that moving forward with the divorce in a way that is productive and beneficial for both parents and children is critically necessary.
How do you make sure your divorce is productive? How do you divorce your husband, your child’s father, and still keep your kid’s best interests at heart? How do you cope with the guilt and the grief involved, and still be sure that you’re there, physically and emotionally, for your children? There’s no question it’s a difficult proposition; one that requires you to be a lot of things for a lot of people, not the least of which yourself. It’s a difficult time for you, too, and one that you’ll need to navigate carefully for your own sake, as well as for the sake of your children.
So, how do you handle a divorce with young children? What do you need to know, beforehand, to ensure that everything proceeds as smoothly as possible? Good questions, for sure, and you’re definitely in the right place if those are the concerns that keep you worrying up late at night.

How does the type of divorce you choose affect your children?

You may not have chosen for your marriage to end this way, but you do have a great deal of control over how the end occurs. Together, you and your husband have a number of choices when it comes to the way your divorce will move forward.
Your divorce will be either contested, meaning that you can’t reach an agreement about how everything will be divided (and, as a result, have to let the judge decide), or uncontested, meaning that you are able to reach an agreement about how everything will be divided.
I’m not saying that it’s easy to reach an agreement; in fact, in almost every single case, it’s very difficult and, at some point, there comes a moment when it feels like negotiation might not work out. But, if you really think about it, which type of divorce do you think would have the smallest negative impact on the children involved? The one where the parents negotiate a result—or the one where they fight it out in court and, ultimately, let the judge make a ruling?
Of course, there are circumstances where it might be necessary to move forward with a contested divorce, rather than an uncontested divorce . It’s a complicated weighing of pros and cons, but it’s important that, together with your attorney, you calmly and rationally discuss your options, with the main objective of keeping your child’s best interests at heart at the forefront of your mind.

What concerns are there when it comes to custody and visitation?

The divorce is one issue, but custody and visitation is another. It’s definitely a part of the overall equation, but often it’s the portion that causes the most difficulty. (No kidding, right?) It’s one thing to calculate support and divide retirement; it’s quite another to figure out how to share weekends and holidays with your children and your soon to be ex husband.
It’s emotional, and it’s draining. There’s no question that it’s difficult, but, really, there’s no other alternative. To the best of your ability, it’s important to consider (now, rather than later) how you’re going to handle custody and visitation.

Separation Agreements v. Contested Divorce

Custody, like everything else, can be reached either by agreement or in court. Most of the time (though certainly not always), it’s best to reach an agreement rather than allowing the future of your children to be determined by a judge. As you can imagine, you’ll have a lot less control over the outcome in a courtroom, the decision will be made by the person least qualified to decide, and, perhaps worst of all, the process itself is emotionally difficult and adversarial. It may be more difficult for you and your husband to co parent after a contested divorce or custody trial than it would be otherwise.
So, what happens in custody cases? If you go to court, do you risk losing custody of your kids? Almost all the moms I talk to are worried about losing custody. In reality, though, custody (in normal cases) isn’t something that is either won or lost.
Most of the time, custody is determined in an agreement. This is probably a win-win situation, because both parents are involved in coming up with a custody and visitation agreement that works for them and their children. It’s probably also safe to say that, in most custody and visitation agreements, mom gets primary physical custody, though we do see a fair number of agreements where shared physical custody is agreed upon.

What’s the difference between primary physical and shared custody?

In a primary physical custodial arrangement, the non-custodial parent (the parent who has the child less) has 89 or fewer days in a year. In a shared physical custodial arrangement, the non custodial parent has 90 or more days with the child in a year. Shared physical custody doesn’t necessarily mean a 50/50 custodial relationship, though it could. Shared physical custody has a wide range; it can include anything from 90 days in a year to a full half of the year, 182.5 days.
The most important thing to consider when it comes to shared physical custody is that it affects child support. In a shared physical custody arrangement, the non custodial parent pays less in support according to the number of days he (or she) has with the child throughout the course of the year. It’s based on a sliding scale; if the non custodial parent spends 90 days with the child in the year, he (or she) will pay more than if he had 182.5 days. In a primary physical custody arrangement, child support stays the same regardless of whether the non custodial parent spends no time at all with the child or the full 89 days.
Ideally, you and your child’s father will reach an agreement about how custody will be handled, and the extent of your custody and visitation issues will be solved. The only real alternative is to go to court.

Best Interests of the Child Factors

When the court determines custody and visitation, it uses the best interests of the child factors to help reach a decision.
If you haven’t had a chance to look at the factors, check them out here:

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.

The Age of the Child: What’s Appropriate?

Of course, regardless of whether custody and visitation is determined in court or by agreement of the parties, the age of the child is relevant. What is appropriate for a newborn is entirely different from what’s appropriate for a high school kid.

The best custody and visitation agreement is one that takes into account where the children are developmentally now, and also allows room for the children to grow and change over time.
Because the court’s primary concern is the best interests of the child, custody and visitation aren’t set in stone. Unlike spousal support and equitable distribution (which is final from the moment you sign your name to your separation agreement, or the judge enters an order if your divorce is contested), child custody, visitation, and support is always modifiable based on a material change in circumstances.
Don’t want to go to court over and over again, every time you get a new job, a promotion, or your situation otherwise changes? Draft an agreement that expands as your child grows older, and new and different things become appropriate. The more you draft an agreement with an eye to the future, the less likely it is that you’ll have to go to court over and over.
Not only that, but it also allows you to make a plan with your child’s father that you can both live with. Knowing what’s going to happen (including the ways custody and visitation can change as the child grows older) can help minimize conflict later. Not prepared to offer overnight visitation with your breastfeeding baby? Strike a bargain with your child’s father that allows overnight visitation to begin at some point in the future, and he’s less likely to feel like he needs to resort to litigation to get what he needs or wants from his paternal relationship. It’s just something to think about.
For more information about divorce with young children, 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.

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