When You DON’T Have a Custody Order in Place

When a couple has a child together, there is no custody order. There’s no “every other weekend” rule, even if mom and dad are no longer romantically involved. Married or single, it doesn’t make any difference. Babies aren’t born with rules about custody in place.

Furthermore, babies are born to two parents, each of whom has equal rights with respect to the child. Neither parent is more important than the other. Think about how it works in a marriage or other committed relationship. Mom and dad share time with the child, and divide up (to some extent) the responsibilities relating to the child. One picks up from day care, one drops off. One feeds breakfast, the other packs lunch. Someone washes dishes while the other is helping with bath time. Of course, it works differently in every family, but, for the most part, responsibilities are shared without a whole lot of fuss.
When things don’t work out between parents, things start to unravel. Usually, it unravels shockingly quickly. Whether you and your child’s father were married and are headed towards divorce, or never married and are just looking for a way to share the responsibilities related to your child (without, of course, coming in too much contact with each other), you’re going to need to establish some kind of agreement with respect to how custody and visitation will be handled.  When you DON’T have a custody order in place, trouble often begins to brew.

In a lot of ways, it’s a mindset change. Instead of your child’s father providing assistance where the child is concerned, he has “visitation.” And visitation means that it’s his private time with the child; time you’re not invited to share. That’s a big change from before, when it was either a cute daddy/daughter “date” or just your night out with girlfriends. Not only that, but, before, when something fun was happening, everyone shared the fun together. Trip to the zoo? Mom AND dad could (and did) go together. Instead, once there’s a custody arrangement in place, “visitation” means something exclusive and different.

And, of course, there’s the fear deep down in every woman’s heart that, somehow, she will “lose” custody, and dad will “win” custody. Whether it’s because she earns less money than dad, or because dad has some dirt that he’s just been waiting to spill, most moms harbor a deep, dark, scary feeling that somehow they’ll lose custody completely, and they’ll be the ones with “visitation.”

The other day, we talked a little bit about the vocabulary of custody. If you’re wondering about how custody and visitation is usually handled, and what things like “joint custody” and “legal custody,” mean, you should definitely check it out (because it’s definitely going to become important). We also talked recently how custody and visitation can be arranged to suit children in different age groups. For more information, click on the age(s) of your child(ren), and you will get lots more information about what types of custody and visitation arrangements are appropriate for kids at different ages: Newborns, school aged kids, and teenaged kids.

Today, we’re going to talk a little bit more about custody orders, and how you establish one. Probably most importantly, we’re going to talk about WHY you should establish a custody order, even though many people are tempted to say, “it’s fine, we’ll just work it out.” Trust me, you want to get a custody order in place!

What is a custody order?

When you’re dividing up custody, you can either do so in an agreement or a judge can do it for you in an order. If you’ve got an agreement, most of the time attorneys will have your agreement incorporated into an order, so it’s recognized and treated with the same intensity as an order from the court would be.
A custody order describes how custody will be handled; whether you’ve got sole or joint legal custody, and whether physical custody is primary to one parent, shared, or split. (Again, for more information about what all these terms mean, check out The Vocabulary of Custody.)

Before you get too alarmed, let me tell you at the beginning: custody is rarely something that is either won or lost. Unless there is some kind of sexual, physical, emotional abuse or serious neglect, in almost every case, moms and dads share custody to some extent. In fact, it seems like the more parents fight over custody, the more likely they are to have shared physical custody awarded. You may view that as a loss in some ways, especially if you’d prefer to have primary physical custody awarded to you, but it’s not. At least, not really—it just means that the child’s father will have more time with the child. Judges seem to lean more towards shared custody these days, at least in contested cases, because they believe that having two parents around is in the best interests of the child.

Before too long, if you’re involved in any kind of custody case or dispute, you’ll hear “best interests of the child.” It’s not just a buzz word; it’s a legal phrase. The statute in Virginia that deals with custody specifically lists ten factors that determine what, exactly, is in the best interests of children. These ten factors (which really are super duper critical in custody cases) help give judges a sort of benchmark to determine whether an arrangement is or is not in a child’s best interests. In case you haven’t had a chance to check them out, here they are:

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.

Custody orders also, in many cases, provides specific details about how custody will be split up between both parents. Keep in mind, though, that you’re likely to get much, much more direction out of a negotiated agreement than you will from a judge.

How do you get a custody order in place?

A custody order can be established in a number of different ways, but, essentially, it’s a matter of either negotiation or litigation.

If you negotiate, you ultimately reach a decision–in a signed writing–that describes how custody will be handled.  If you  litigate, the judge will decide, and will enter a binding order that you must follow.

If your custody case is part of an underlying divorce

If you are getting divorced and ALSO have custody issues to consider, you’ll either negotiate custody (through mediation, collaboration, or negotiation) or let a judge decide in court.

Mediation, collaboration, and negotiation are different methods, but the ultimate goal is the same: a signed agreement. In mediation, you work with a trained mediator (who may or may not also be an attorney) to negotiate an agreement. You and your husband share a mediator, but the ultimate goal will be to get an agreement in place that divides everything (not just custody), so that you don’t have to let the judge handle it. In collaboration, you and your husband each hire collaboratively trained attorneys and a team of professionals, including divorce coaches for each of you, and shared financial and child custody experts, who will help you reach an agreement that takes everyone’s best interests into account. Negotiation can either be achieved on your own, without an attorney, or with an attorney. Usually, a first draft of an agreement is created, and then sent back and forth between the parties until a final agreement is achieved.

If your divorce is litigated, you’ll take it all in front of a judge at your local circuit court. Of course, it is also possible to reach an agreement with respect to some issues, but litigate others; it really all depends on your case. In a litigated divorce, you would certainly want to hire an attorney (even though it’s possible to do it on your own, I can’t recommend it in good conscience) to represent you.

If it’s just custody

If your case is just a custody case (meaning that you’re not also getting a divorce), you have it a little bit easier. Like in the cases with an underlying divorce action, you have the option of mediation or negotiation, either with an attorney or on your own. (Collaboration, on the other hand, is a divorce-specific process.) Mediation and negotiation basically mean that you would go back and forth until you and your child’s father have an agreement that you’re willing to sign. Whether you share a mediator, hire your own attorneys, or negotiate on your own, the end goal (that signed agreement) is the goal.
You can also litigate custody and visitation but, instead of the circuit court, your case would be decided (at least initially) in the juvenile and domestic relations court (or J&DR, as it is often called). Juvenile court is great for a lot of reasons, but primarily because (1) it’s much easier to navigate as a pro se litigant (a person representing herself without the help of an attorney, and (2) if you don’t like the result, you can automatically appeal it to the circuit court. For cases decided in the circuit court (like cases where the custody case is part of an underlying divorce), it’s much more difficult to appeal. You would have to appeal to the Virginia Court of Appeals from the circuit court, and they only take appeals based on a mistake in law (meaning that the judge inaccurately applied some feature of the law)—not fact (meaning that the judge misunderstood or didn’t hear a particular fact that would change the way the case was decided). Juvenile court decisions can automatically be appealed to the circuit court for a brand new “do over,” without any reference to the lower court’s proceedings.

What are the advantages to negotiating it on our own?

When you negotiate your own agreement, you have a lot more freedom to craft something that takes your particular situation and your specific child into account. A judge, on the other hand, briefly hears evidence and makes a ruling—but not necessarily in the amount of detail that a mother feels her case deserves. With an agreement, the sky is the limit; you can really agree to almost anything, and that kind of freedom is pretty priceless.

With negotiation, you can come up with any kind of custody and visitation arrangement that works for you. Chances are, with a judge in charge, you’re going to end up with a more or less generic arrangement. It’s important to take the opportunity now to craft an agreement that will allow you and your child’s father to be effective co-parents, and prevent your having to return to court over and over again until your youngest turns 18.

Can’t we just wing it? Do we really need a custody order?

Custody orders are super important, because they keep everyone out of trouble. Remember how we covered the 10 critical “best interests of the child” factors? Well, there’s one factor that really stands apart from the rest, at least as far as moms are concerned. In fact, this factor is regularly referred to as “the mom’s downfall.”

Factor number 6 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,” and it has a LOT to do with why you should get a custody order in place right away. The temptation is to say, “Oh, it’s fine, we’ll work it out,” and, in some cases, that can work. But it’s risky. Very risky. And in all but a very few cases, I’d say it’s best to just go ahead and get a custody order in place, as a matter of protection.

Why? Well, because when you say, “we’ll just work it out,” what you’re really saying is, “when he asks me for time with the kids, I’ll be reasonable.” You’re thinking you’ll review things on a case by case basis. To be fair, you’re probably perfectly reasonable in your thinking, and you’re not going into this kind of an arrangement expecting to turn your child’s father down. But, in my experience, that’s what happens. Whether you’re reasonable about it, or whether you’re being a tad unreasonable (I’ve seen both types of scenarios play out), it doesn’t much matter—if your child’s father hears the word “no,” when he’s asking you to do something that he feels is reasonable, you’re asking for trouble.

Here’s what will happen. He’ll take you to court, alleging that you’re unreasonably denying him access to the child. I’ve seen it happen time and time again. Courts don’t like that kind of accusation, and sometimes moms even lose custody over it. Best case scenario, the judge will order something with respect to custody and visitation. Worst case, you could even lose custody (and by lose, I mean that he could get primary physical custody, and YOU could be the parent with visitation). I said earlier that “losing” custody isn’t something that usually happens and, in most cases, it’s not. It’s certainly not the case that perfectly good parents are not allowed to see their kids at all; it’s also pretty rare that dad would take primary physical custody (over shared custody) in a litigated case. But it can happen, and, all too often, if it does happen, factor #6 is at the root of it.

It’s not like you WANT to keep the kids from their dad. It’s just that, when there’s no order in place, the temptation is great to say, “Oh, no, well, THIS Saturday isn’t good for us.” It’s too easy to already have plans, or to wrap your mind around something happening one way, and then have a hard time adjusting to change plans. It’s also not good for kids, because they really do tend to thrive on routine, structure, and predictability.

If you don’t have a custody order in place, are you violating a court order if you go get your child–or just hold on to him or her?  No.  So, technically, if you go pick up your child, or keep your child from his or her father, you’re not violating the law or any specific rules.  If, though, a judge later finds that you’ve unreasonably denied visitation or withheld the child from his or her father, there may be legal consequences.  (Another reason you’ll want to get one in place–and soon!)

If you have a custody order in place, you don’t have to worry about giving your permission for certain things to take place; he has his time, and you have yours. There’s not nearly as much left up to your discretion, and it will be much more difficult for him to say that you’re disallowing things and keeping him from having access to the child. It is also generally helpful for everyone to have a plan, and to plan activities for the child within those specific, predetermined times.

For more information about custody arrangements, or for help negotiating or litigating one for the benefit of your family, give our office a call at (757) 425-5200.

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