By Charles H. Staples, Esq.
MY CHILD'S OTHER PARENT AND I CANNOT AGREE ON THE ISSUE OF CUSTODY. HOW IS CUSTODY DETERMINED BY A JUDGE? WE ARE BOTH GOOD PARENTS!
The single determing standard for resolving a child custody dispute is "The Best Interests of the Child". A child is not considered the "property" of either parent. Neither parent has a superior right to the custody of a child, absent "Red Flag" circumstances, such as a serious felony conviction of one parent, proven drug abuse or alcoholism, to name a few.
The biological mother of the child does not automatically have legal custody of the child, by reason of giving birth. At birth, both married parents have equal status, but neither has legal custody. Legal custody can only be awarded in a court order. If the parents are unmarried, the father legally, is considered a "stranger" to the child unless he signs the birth certificate and the mother does not dispute his paternity, or if he legally establishes paternity in court or through an adminstrative child support process.
Men who think they may have fathered a child can establish a limited right to notice of legal by the courts of proceedings regarding the child. Signing up on the Putative Father Registry does not establish paternity, nor does it create any legal rights regarding the child. It simply protects a man from the mother stating in her court petition that the child's father is unknown or deceased. You can access the registry by "Googling" Virginia Putative Father Registry, or by going to any Virginia social services office.
In a healthy marriage, legal custody is not an issue. Both parents exercise legal rights concerning the child's welfare, and both share physical custody. But if the marriage breaks down, and a separation occurs, there is usually great conflict concerning first, the physical custody of the child, and secondly,who will be given legal custody. If the parents cannot agree, one or both parents will file a petition in the Juvenile and Domestic Relations Court where the child last resided, or where the child presently resides. Sometimes this filing occurs in another state, which creates great logistical, economic and legal problems for the other parent. Court employees provide assistance in filing out the paperwork. The filing fee is only $25.00.
The other parent is served with the paperwork, which contains the first court date, which is usually about six weeks in the future, due to the heavy volume of filings. Only in "life-critical" or other extremely urgent circumstances can an emergency, temporary custody order be obtained to cover the period from the filing date to the initial court date.
At the initial court date, a lawyer called a "Guardian ad Litem" will be appointed to represent the child. This lawyer does not give legal advice to either parent, and represents only the child. The "G.A.L." does a thorough investigation by interviewing the parents, the child, other relatives, the child's teachers, if necessary. The G.A.L. also reviews relevant school, counseling and medical records. Virginia law allows a judge to allocate the fee of the G.A.L. between financially-able parents, but this rarely occurs.
In Virginia, the parents are required to attend at least one mediation session. If there is an agreeement in mediation, the agreement becomes a court order when signed by a judge, and the case is closed. If mediation is unsuccessful, the case is tried. The G.A.L. submits his report and reccomendation to the court, and the judge makes her decision. Any parent can appeal within 10 days, to the Virginia Circuit Court, where a completely new trial will occur. Otherwise, the court order stands as final, unless and until it is modified by a new court order. Many parents make the mistake of thinking that simply because circumstances have changed, such as the child coming to live with them, that the court order automatically becomes null and void. This is totally untrue. For example, a child support order continues in effect in such an example, with the new custodial parent getting further and further behind in child support due, without his knowledge! A legal motion to abate child support is the proper course of action in this situation.
The "best interests" standard means that the G.A.L. is not obligated to advocate to the court for the result the child wants to happen in court, but the Guardian ad Litem advocates for what he feels is best for the child. This is a subjective opinion based upon 10 objective critieria set forth in Virginia law. (Contact Attorney Staples for a mailer of the 10 factors upon which custody decisions are based).
Attorney Charles Staples is an experienced child and family advocate, who has served as attorney for parents in contested custody cases, and contested adoptions cases in Virginia for the last 10 years. He has served as Guardian ad Litem for children in the Virginia juveniles courts in Chesapeake, Suffolk, Virginia Beach, Hampton and Newport News. He is in his 34th year in the practice of family law, and has served as a judge in the state of Missouri.
Attorney Carla Kithcart is an experienced child custody and family law advocate who practices in Virginia in the courts in Virginia Beach, Chesapeake, Virginia Beach and Norfolk, among others. Attorney Kithcart can be reached at 757-473-5705 (See her webpage at this site).
For more information about this important family law issue, and information on other family law issues, contact the author at 757-497-2485.
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