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Virginia Custody & Visitation

a. Custody considerations.

If custody "must" be litigated,(31) a few principles should be borne in mind.(32)

First, what has been termed the "settled custody" issue. That is, "everything else being equal," Courts will not upset children's relatively-settled living arrangements simply because they might have decided the issue differently from the outset. Consequently, the parent who leaves (without) the children has already "spotted" the other parent a few key "points" in "the battle. " And, as sexist as this will no doubt seem, as a practical matter, you should be apprised that such difficulties are especially severe for women " leavers " (without the children); in effect, it seems, the usual " presumptions " in favor of women are reversed in that situation (notwithstanding the fictitious Courtroom scene in Kramer v. Kramer).

As to the latter point, it should be noted that, for years, both Virginia and D.C. have legislatively outlawed the "tender years" doctrine; theoretically, both states prohibit expressed judicial custodial preferences based on sex. However, when it comes to delving into some of the traditional sub-issues in custody fights -- e.g., prior to separation, who was the "primary caretaker" and/or who was more the "nurturing parent" -- usually, it is the woman who will prevail. And, as much as the "Father's United for Equal Justice Under the Law" organization (even the presumed prejudice in favor of women on the part of practicing lawyers and potential litigants tends to serve the healthy societal function of minimizing the frequency of the sad spectacle of custody battles).

As noted above, ("personal") "fault" per se, even adultery, is essentially irrelevant in custody fights. However, in Virginia at least, even after divorce, "exposing" children to unrelated overnight visitors of the opposite sex is a pretty certain means of at least jeopardizing even "settled" custody arrangements. This is such a strong principle that, virtually upon request (at least with some evidentiary support for the request), Virginia Judges will feel constrained to grant "injunctions" against such misconduct, even during periods of visitation.

From and after their teen-aged years, "clear elections" by a child to live with one parent or the other will usually be honored by the Courts (as long as the child is apparently not making an irrational decision to live with an over-indulgent or "unfit" parent). As one Fairfax Circuit Court Judge put it several years ago, in deciding whether even visitation with the mother, with whom, by Agreement, a boy had consistently lived after separation (for years), would be ordered (after the boy had run away, after a physical fight with her new husband) "a 15-year-old boy is like an 800-pound gorilla; the answer to the question of where he will sleep is.

Moreover, at least unless that previously has been the "settled" pattern, Courts usually are reluctant to "split up" siblings between the parents, over the objection of one of the parents. Consequently, at least in rendering initial custody decisions, "clear" choices by the older child(ren) may well dictate the custodial arrangements for all of the children. And, as a practical matter, it probably should be borne in mind that often such "choices" by the children are made as much or more for their settled environment, friends, school, etc., than for the particular parent; which is but another consideration for the potential "leaving" parent to weigh.

Courts also are reluctant to order "shared custody" of particular children (i.e., something approaching "equal time" with each parent), especially if the child is of school-attendance age (and the parents do not reside in the same school district); again, at least unless that has previously been the settled pattern (and the child seems to have adjusted well to the arrangement). And, with respect to "shared custody, " it probably should be noted that now that the Legislature has "fixed" the definition of "a day" in our shared custody support provisions (effective July 1, 1999), and set the threshold for applicability of these provisions at 90 days per year, we can look for "visiting parents" once again to fight even more fiercely for extra days of visitation, largely or apparently merely for financial reasons. On the other hand, if the extent of sharing time with the children reaches the level of 90 "full" days per year, (33) different child support guidelines may be used, which will significantly decrease the amount of child support to be paid. Consequently, often "visiting" parents fight fiercely for extra days of visitation, largely or apparently merely for financial reasons.

Which leads us to another consideration in custody battles: financial cost. In addition to the Solomonic difficulty of amicably "settling" custody battles -- lawyer's fees and Court (Reporters') costs in fully-litigated custody fights are virtually inevitably going to exceed "five figures" for each party -- woe (usually) upon the serious litigant who does not also employ his or her chosen forensic psychologist or psychiatrist.

Joint ("legal") custody is an increasingly-popular concept these days (for ease of reference, distinction of the above-referenced "shared custody" arrangements). In essence this amounts to but little more than a "sop" to the otherwise non-custodial parent, to help him or her and/or the children believe he or she is not "deserting" them, and still has a "say" in their upbringing. Supposedly, it provides for decision-making input; in cases of "ties," however, someone has to make "the decision"; and absent "running to Court" over every little dispute (a sure way to win the admiration of the Judges!), usually it is going to be the "physical custodian" who will have that opportunity, as a practical matter (even in Court battles, unless the physical custodian's choice is rather irrational, usually that parent's choice will be supported).

Nor does being "awarded" Joint legal custody seem to really provide a decisive "leg up" for a future custody fight. Closeness in fact of the parent-child relationship and very significant changed circumstances are the key issues there. Nor will whether or not "Joint legal custody" arrangements are in force be the "deciding factor" regarding potential moves out of state, or out of the geographical area, by the physical custodian. (34)

Even during a period of visitation, hospitals will allow the visiting parent to sign the child in for medical treatment. Even schools occasionally do not question custody arrangements when a parent seeks to register a child at a new school. The primary practical advantages seem to inhere in foreign travel; the signature of the other joint custodian is not required for passport or visa applications; and some Federal agencies and world organizations provide free travel benefits (only) for children of whom the employee has at least Joint legal custody.

Often these days it seems that Judges award "Joint legal custody" to "the loser" in a custody battle, especially if "the loser" should be the woman (regardless of the ironic fact that, theoretically, "joint legal custody" is most appropriate where parents are able to work together to make decisions on behalf of the children). Similarly, offering "joint legal custody" as a "bargaining chip" in exchange for items of real substance in settlement negotiations can be a useful approach.

Finally regarding custody fights, to return to the point implied at the beginning of this section before plunging into a custody war, you should carefully examine your true motives in the matter (examining your spouse's motives will almost invariably yield the "fighting" answer); and ask yourself this adaptation of the ultimate issue enunciated by the Courts: is it clearly "in the best interests of the children?" Would your spouse, really, probably be an inappropriate custodian? No matter what your parents or friends may seem to think (or you believe that they would think) -- you will not be a lesser woman, man or person if you are not the primary physical custodian for your children.

As a divorced father of two wonderful children, now 29 and 28, the younger of whom lived with him during some of her college years, after having lived in Florida for several years; both children also having lived in Texas, New Mexico and Colorado; as a divorced father who also had "physical custody" of the oldest for a couple of years -- I think I am personally qualified to know the agony of physical separation from one's children (not to speak of the expense of long-distance visitation); and the guilt involved in choosing not to fight for custody. But there is life beyond full time with one's children; relationships can be maintained, notwithstanding the difficulties. And being a single parent physical custodian can be one heck of a burden! (35)

b. Visitation guidelines.

As to visitation, the "usual" arrangements (i.e., the definition most frequently given "reasonable visitation" by the Courts and lawyers). where the child is not an infant who has never been cared for by the visiting parent overnight, and where the parents reside in the same geographical area -- are: alternating weekends (Friday nights or Saturday mornings, through Sunday nights), split and/or alternating (i.e., every other year) major holidays (Christmas, Thanksgiving and Easter or Spring school "break" periods; often Federal Monday holidays, New Year's Day and July fourth are included among the holidays to be split or alternated in odd and even years), and the children's birthdays; with the father having the children on all Father's Days (sometimes, his birthday, also), and the mother, on all Mother's Days (and sometimes her birthdays, also); and a couple of weeks or more of uninterrupted time during the children's school summer vacations.

"Liberal" visitation often includes, also, a weekday evening or two per week (sometimes, if practicable, overnight), and lengthier summer visitation. Obviously, practical constraints limit "long-distance" visitation usually to one to three periods per year times during the summer, and during the children's Christmas and Spring "breaks" or Thanksgiving vacation). In addition, the "separate agendas" of teenagers often cause practical limitations upon visitation time even for parents living in the same geographical area.

Notwithstanding the frequency of such "specifications" for visitation, these arrangements are initially and ultimately for the parents and children to (attempt to) work out. "Reasonableness" is the key (as inherently difficult as it may be for an estranged couple to be "reasonable" about one of the most potentially emotive aspects of their situation); agreements typically use the terms "reasonable notice"; requests (for changes, additional times, etc.) "not unreasonably refused"; "reasonable accommodation" of the schedules of the physical custodian and/or the children; etc.

31. Bear in mind that "studies" have demonstrated what most people probably have already "divined" as a matter of "common sense" -- the more divisive and acrimonious a separation, the greater the effects will be on the children, especially in their pre-teen and teen-aged years.

32. In this area, also, Virginia has a statutory provision dictating consideration of certain enumerated factors.

33. Only overnight periods are counted for these purposes; and overnight periods of less than 24 consecutive hours are counted as only half days.

34. On the other hand, please do not view an award of "joint legal custody" as being of no value whatsoever. Obviously, it at least can be argued to be an indication of the closeness of the relationship between the visiting parent and the children in question.

35. On the other hand, it should be obvious that geographical distance and infrequency of contact between parent and children will lessen the influence of the parent on the child's life.

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The Virginia court gives primary consideration to the best interests of the child in determining custody. The court assures minor children of frequent and continuing contact with both parents, when appropriate, and encourages parents to share in the responsibilities of rearing their children. In determining the best interests of a child, the court considers a variety of factors including the age, physical and mental condition of the child as well as each parent, the needs of the child, the role of each parent and the rapport of each parent, and the "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," family abuse, and "other factors as the court deems necessary and proper to the determination."
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