Chapter 11

Custody and Visitation

Custody and visitation are often the most emotional issues to be addressed in a divorce. With rare exceptions, both parents love their child or children and are very concerned with preserving or improving their relationship with their child during and following the divorce. Before the divorce, both parents typically spend time daily with their child. Once the parties separate, both parties have to accept a schedule in which they do not necessarily see their child on a daily basis. This is often hard to accept.

Because in most cases both parties would like to see their child daily, it is easy to see the custody and visitation issues as a competitive situation in which each party tries to maximize his or her time with the child, and there is a winner (the parent with the most time) and a loser (the visiting parent). Both parents should strive to avoid this competitive, win-lose framework.

It is very important to keep in mind the child’s perspective and his or her best interests. Your child loves both of his or her parents, and needs a healthy relationship with both. Though it is hard, make every effort to do what is best for your child, even if that means a schedule or arrangement that is not your preference.

There are many studies, some conflicting, with regard to the effect of divorce on the healthy development of children. On one issue there seems to be agreement: high levels of conflict between his or her parents is not in a child’s best interests. As you work through the issues of custody and visitation and the other divorce issues, make your best effort to be nice and fair to your spouse. Be cooperative with the hope that your spouse will reciprocate. Do it for your child or children.

11.1 What Does Physical Custody Mean?

Physical custody refers to the day-to-day care of and responsibility for the child. Physical custody can be primary with one parent, or shared.

11.2 What Does Legal Custody Refer to?

Legal custody refers to the decision-making authority with regard to important decisions affecting the child, such as the choice of school, the choice of health care providers, and specific nonroutine decisions such as whether to prescribe medication to help address a child’s behavioral problems.

One parent can have sole legal custody, or the parents can share joint legal custody. Joint legal custody is often considered best for the child, but only if the parents are capable of acting in a cooperative manner in the child’s best interests.

11.3 On What Basis Will the Judge Award Custody?

The judge will award custody only if you and your spouse cannot agree regarding the custody and visitation arrangements. If you cannot agree and have to go to court, the judge will consider evidence relevant to the custody and visitation statutory factors, which are listed in the appendix. The standard in Virginia is the best interests of the child. The judge is required to make a ruling that is in the child’s best interests. The judge has considerable discretion as this determination has an unavoidably subjective element.

11.4 In the Context of My Divorce, What Does Visitation Mean?

Visitation refers to the schedule that one or both of the parents (usually the parent that has less time with the children) has with the children.

11.5 Is There a Way for My Spouse and Me to Agree Upon Custody and Visitation Without Having to Go to Court?

As with all of your divorce issues, you should seek a compromise settlement of the custody and visitation issues. You should communicate and resolve your differences directly with your spouse, if possible. Alternatively, the attorneys can negotiate on your behalf. Mediation or collaborative law works for some parents. Mediation with a child psychologist is sometimes effective in reaching an agreement. See chapter 15 for an additional discussion of settlement issues.

11.6 What Options Do My Spouse and I Have Regarding Our Child’s Schedule Once We Separate?

There are numerous schedule options, including an alternating week with each parent; Monday and Tuesday with one parent, Wednesday and Thursday with the other parent, and alternating weekends; and one night during the week and every other weekend visitation for one parent with the other parent having custody the remaining times. There are many other possible schedules, and holidays and summers also have to be addressed.

11.7 What Custody and Visitation Schedule Will the Judge Order for Our Children?

The judge will order a schedule for your children only if you and your spouse cannot agree upon a schedule. If necessary, the judge will order a schedule for your children after considering the evidence presented as required by the custody and visitation statutory factors ( see the appendix for the custody and visitation statutory factors). The judge is required to make a ruling that, in his or her judgment, serves the best interests of the children. Each family situation is different, so there are a variety of schedules ordered in different cases.

11.8 What Is a Guardian Ad Litem ? Why Is One Appointed?

A guardian ad litem, or GAL, is an attorney that is appointed to represent your child in the custody and visitation case. In some courts a GAL is appointed automatically. In most courts a GAL is appointed only if one of the parties files a motion requesting that a GAL be appointed. A judge will appoint a GAL if he or she concludes that the child’s best interests require a GAL, and that a GAL would assist the judge in determining the child’s best interests.

11.9 Will My Children Be Present if We Go to Court?

Either parent can bring the children to court, though in most cases the children are not present. If a GAL has been appointed to represent the children, then the issue of bringing the children to court should be discussed with him or her. Children should be shielded as much as possible from the divorce proceedings, and they should be involved in a court case only for compelling reasons.

11.10 How Much Weight Does the Child’s Preference Carry?

It depends upon the age and maturity of the child and the judge. The older and more mature the child, the more weight his or her preference carries. For example, the reasonable preference of a seventeen-year-old would typically carry significant weight, while the preference of an eleven-year-old to spend more time with the more fun and easy going parent would not carry much weight.

11.11 How Old Do the Children Have to Be Before They Can Speak to the Judge About Where They Want to Live?

There is no specific age limit requirement. It depends upon the age and maturity of the child and the policy of the judge.

11.12 If My Child Wants to Talk to the Judge, Does He Have to Do That in Open Court in Front of Both Parents and Our Attorneys?

Typically the child would talk privately with the judge without the parents or the attorneys being present. There are specific rules governing this process that you should discuss with your attorney.

11.13 Will My Attorney Want to Speak to My Child?

Not usually, unless he or she is going to call your child as a witness to testify in court.

11.14 Do I Have to Let My Spouse See the Children if I Don’t Trust Him to Return Them When He Should?

It is important that you act in your children’s best interests. With rare exceptions, children benefit from regular contact with both parents. One of the custody and visitation statutory factors is whether either parent has interfered with the other parent’s relationship with the children. If your case ends up in court, the judge may hold it against you if you have not allowed your spouse to see the children. Both parents should cooperate to avoid having a tug-of-war with the children. Involve the attorneys, a child psychologist, or a judge, if necessary.

11.15 I am Seeing a Therapist. Will That Hurt My Chances of Getting Custody?

Obtaining help for any mental health issues will almost certainly not be held against you, though the underlying mental health condition may be an issue. For example, if you are a suicidal schizophrenic your chances of getting custody are slight. If you are anxious and depressed associated with the divorce, and you have obtained appropriate treatment, this likely will have little or no effect on your custody case.

11.16 I am Taking Prescription Medication to Treat My Depression. Will This Hurt My Chances of Getting Custody?

The issue is your condition. If your depression is under control with the help of the prescription medication, if there are no side effects that would impact your children, and if you are consistent in meeting with your doctor and taking your medication, then this will likely have little or no effect on your custody case.

11.17 Will the Fact That I Had an Affair During the Marriage Hurt My Chances of Getting Custody?

It depends upon whether your conduct had any impact on your child, or upon your relationship with your child. It could hurt your chances if you exposed your child to your adulterous relationship, or if you regularly chose to spend time with your paramour rather than your child. Otherwise, the affair should have little impact on your custody case.

11.18 During the Months It Takes to Get a Divorce, Is It Okay to Date or Would That Hurt My Custody Case?

While you are still married you be sensitive about exposing your child to your dating relationships. Your custody case should not be harmed if you choose to date while your child is with the other parent (assuming your boyfriend or girlfriend is not a sex offender or other inappropriate choice).

11.19 Can Having a Live-in Partner Hurt My Chances of Getting Custody?

In prior decades court-ordered prohibitions against exposing children to a parent’s overnights with a partner were common. This is less of an issue now, though the applicable policy on this issue varies based upon the geographical area, the judge, and the facts of the case.

11.20 I’m Gay and Came Out to My Spouse When I Filed for Divorce. What Impact Will My Sexual Orientation Have On My Case for Custody?

Your sexual orientation should have no impact on your custody and visitation case. Your sexual behavior could impact your case, just as the sexual behavior of a heterosexual can impact his or her case. Judges are concerned that children not be exposed to inappropriate behavior.

11.21 Can I Have Witnesses Speak on My Behalf in My Custody Case?

Yes, though family members and close friends are usually of limited value as it is understood that they love you and want you to obtain the best possible outcome. Non-family members, such as teachers or day care providers, who are not biased towards either party, can be valuable witnesses.

11.22 What Is a Child-Custody Expert ? Why Is One Appointed?

Either party can file a motion to have a child-custody expert, usually a specially trained evaluator (who typically also works as a children’s therapist, though not in the same case in which he or she is an evaluator). A party requests the appointment of an expert when he or she thinks the evaluator will bring to the judge’s attention negative personality traits or relationship issues of the other party, and positive personality traits or relationship issues involving him or herself. These evaluations are expensive, and in most cases the judge can understand the family situation and dynamics without the need for an expert. Expert evaluations are not used in most cases.

11.23 How Might Photographs or a Video of My Child Help My Custody Case?

Scrapbook-type photographs are frequently used but are usually of limited value. Sometimes photographs or video are used as evidence of physical abuse. You should obtain legal advice in this situation. Sometimes these photographs or videos are held against the parent presenting the evidence on the basis that the taking of the photographs can make the child feel uncomfortably involved in the case. (This is typically not an issue if the child is too young to understand, or if the child is sleeping when the photographs are taken.)

11.24 Does Shared Physical Custody Mean Equal Time at Each Parent’s House?

No, there are many possible shared physical custody schedules. For example, one parent could have three days per week, and the other could have four; one parent could have five or six days every two weeks; or one parent could have most of the summer, the other parent could have most school nights, and the parents could equally share weekend time. The focus should be on creating the best possible schedule for the child, not on making sure that each parent gets exactly one half of the time.

11.25 If I Have Sole Custody, May I Move Out of State Without the Judge’s Permission?

Under Virginia law, every custody and visitation order includes a requirement that you give the other party thirty days’ advance notice before you move out of state with your child. If the other parent does not agree to modify the visitation arrangement to accommodate the move, then you will need a hearing to obtain permission of the judge. This answer is the same no matter what custody arrangement you have.

11.26 What Does It Mean to Have Split Custody ?

Split custody refers to an arrangement in which each parent has custody of at least one of the children. Though parents and judges typically prefer to have similar schedules for the children, sometimes it makes sense for one parent to have custody of one child while the other parent has custody of the other.

11.27 What Is a Parenting Plan ?

Parenting plans provide guidance for parents on issues likely to cause conflict between them in the future if not considered. For example, parenting plans may address issues such as decision-making authority, discipline, and the division of parental responsibilities. A parenting plan typically includes custody and visitation arrangements, including details such as scheduling, exchanges, and procedures for resolving scheduling changes or conflicts. A parenting plan may provide guidance on other issues such as communications between the parents, communications between the parents and children, nonparent child care, and dispute resolution.

Virginia law does not require the creation of parenting plans. Nevertheless, parents are free to work together by agreement to create a parenting plan for how they are going to co-parent their children after the divorce. If the parents agree, a parenting plan can be included or incorporated in a custody and visitation order entered by the judge.

Even though Virginia law does not require the creation of parenting plans, many of the issues and details provided for in a parenting plan are included in settlement agreements and in custody and visitation orders.

11.28 If My Spouse Is Awarded Legal Custody, Can I Still Take My Child to Church During My Parenting Time?

Yes, it is highly unlikely that a judge would attempt to restrict your choice of religious activities with your child during your parenting time, absent a clear and serious threat to your child’s well-being.

11.29 What if My Child Does Not Want to Visit Her Dad? Can He Force Her to Go?

If there is a court-ordered visitation schedule, you are required to obey and respect the schedule. The child’s wishes do not trump a court order. If you do not make the child available for visitation, you are in violation of a court order and can be charged with contempt of court. If your child has a good reason, the proper procedure would be to file a motion to modify the visitation.

11.30 What if My Child Is Not Returned by Her Mother at the Agreed-Upon Time? Should I Call the Police?

Police involvement is stressful for the parents and the children. The police should be called only if necessary for someone’s physical safety. Other disputes should be handled between the parents, with the attorneys, and with the judge, if necessary.

Try to have a broad perspective regarding any concern involving your child. Focus on your child’s best interests and try to minimize conflict with the other parent. For example, if a child is returned late as an isolated incident, you should do nothing. If the child is returned late as a pattern and as a result doesn’t have time to finish his homework, you should communicate with the other parent in a polite manner about your concerns. If the other parent is not responsive to your concerns on any parenting issue, then discuss your concerns with your attorney. If your concerns are serious enough, they can be brought to the judge’s attention.

11.31 My Spouse Argues With Me in Front of the Children and Talks to Them About the Divorce. What Should I Do?

Avoid arguments and conflict with the other parent in the presence of the children. Shield your children as much as possible from conflict and involvement in the divorce. Things are hard enough for them. Let them be children. You and your spouse are adults and should handle your divorce in a mature, thoughtful way. You both love your children, so do what you can to protect them from the negative emotions and words associated with your divorce.

11.32 I am Considering Moving Out of Virginia. What Factors Will the Court Consider in either Granting or Denying My Request to Remove My Child From Virginia?

The standard for all issues involving your child is his or her best interests. You will be allowed to move your child out of state only if the move is in the child’s best interests. In most cases the biggest issue is the child’s relationship with the other parent. What impact will the move have on that relationship? The public policy in Virginia is for both parents to have frequent and continuing contact, and to be involved in the child’s care and upbringing.

11.33 After the Divorce, Can My Spouse Legally Take Our Child Out of the State During Parenting Time? Out of the Country?

Absent a specific restriction in the court order, neither parent is limited with regard to travel during his or her time with the child.

11.34 If I am Not Given Custody, What Rights Do I Have Regarding School and Medical Records?

Under Virginia law, both parents have access to their child’s academic and medical, hospital, and other health records. This right of access applies to both parents regardless of the specific custody and visitation arrangement.

11.35 Can I Attend My Child’s Medical Examination Scheduled During the Other Parent’s Time?

It is important that parents cooperate on things like this for the sake of their child. It is good for the child to have the benefit of both parents’ concern and involvement. This should not be a source of conflict between parents, but if it is, consider whether the harm to your child due to the conflict outweighs the benefit to her of both parents attending. If you don’t attend, you can talk to the doctor and review the medical records after the appointment.

11.36 What if My Child Has Suffered Abuse From the Other Parent? Do I Still Have to Force My Child to Continue to Visit?

This is a terrible situation to have to deal with. On the one hand you feel you have to do everything you can to keep your child safe, and on the other hand you have to obey all court orders. Obtain legal advice immediately. If there has been abuse, your attorney will help guide you through the process which may include a motion to modify the custody and visitation order, a report to social services, and a criminal complaint. Be very careful. You want to protect your child, but if the judge later concludes that you made serious, unfounded allegations against the other parent, your parenting time could be reduced, and you could even lose custody.

11.37 What Does It Mean to Be an Unfit Parent?

An unfit parent is a parent who either engages in misconduct that affects their child, neglects his or her child, or demonstrates an unwillingness or inability to promote the emotional or physical well-being of their child. The home environment and moral climate created by the parent are important factors in determining whether he or she is unfit.

11.38 How Can I Get My Spouse’s Visitation to Be Supervised?

Supervised visitation is ordered only when supervision is required for the safety and well-being of the child. A concern that the other parent is not a good parent for one reason or the other is not sufficient. As a general rule, supervised visitation is ordered only when physical or sexual abuse, or neglect by the visiting parent has been proven. Supervised visitation may be ordered during the investigation following an allegation of abuse or neglect.

11.39 I Want to Talk to My Spouse About Our Child, but All She Wants to Do Is Argue. How Can I Communicate Without It Always Turning Into a Fight?

Because conflict is high between you and your spouse, consider the following:

• Ask your lawyer to help you obtain a court order for custody and visitation that is specific and detailed. This lowers the amount of necessary communication between you and your spouse.
• Put as much information as possible in writing.
• Consider using e-mail or texts.
• Avoid criticisms of your spouse’s parenting.
• Avoid telling your spouse how to parent.
• Be factual and business-like.
• Acknowledge to your spouse the good parental qualities he or she displays, such as being concerned, attentive, or generous.
• Keep your child out of any conflicts.

By focusing on your own behavior, you may be able to reduce conflict with your spouse. Most of us are critical of others while being reluctant to analyze our own behavior with the same critical eye. Additionally, talk to your attorney about developing a communication protocol to follow when communicating with your spouse.

11.40 What Steps Can I Take To Prevent My Spouse From Getting Our Child in the Event of My Death?

The other parent becomes the custodial parent automatically upon your death. One of your friends or family members could seek custody at that time. The law favors the parent, so this contest would be hard for the nonparent to win. As a general rule, for a nonparent to win custody over a parent, the nonparent would have to prove that the parent was unfit or that he or she had abandoned the child.