phone logo facebook logo-blue twitter logo-blue box youtube

Blog

Welcome to my blog

 

Here you can add some text to explain what your blog is about and a bit about you.

By weatherleyd38885995, Feb 11 2016 08:49PM


Virginia law requires judges to base custody determinations on the best interests of the child, as determined by ten factors stated in Virginia Code Section 20-124.3. Neither parent is automatically favored in these factors—meaning there is no legal presumption in favor of the mother (or the father).

Although Section 20-124.3 does not use the phrase “primary caregiver,” one of the factors listed is the “role that each parent has played and will play in the future, in the upbringing and care of the child.” Another factor is 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.” These two factors will tend to provide an advantage to the child’s primary caregiver—the parent who has assumed the greater responsibility in the day-to-day care and rearing of that child.


Although these factors are important, the court cannot limit its decision to just these two factors. It must consider all ten factors, including the mental and physical health of the child as well as the parents, the ability and willingness of each party to support the child’s other important relationships, the needs of the child, the reasonable preference of the child, any history of abuse, as well as any other factors the court deems necessary and proper to the custody determination.

So, does the primary caregiver have an advantage going into a custody case? Yes. But, is the title of “primary caregiver” indicative of an absolute result? No.

How Does a Court Determine Which Parent Is the Primary Caregiver?

In many child custody cases one parent is clearly the primary caregiver, and that fact becomes evident from the evidence presented at trial. The court will be listening closely for answers to questions such as:

Who helps the children with their homework?

Who attends parent-teacher conferences?

Who takes the children to sports practices and other extracurricular activities?

Who shops for school supplies and new clothing for the children?

Who takes the children to doctor’s appointments? Who picks up their prescriptions, and makes sure they take their medicine when they are sick?

Who gets the children ready for school in the morning and puts them on the bus?

For younger kids, who bathes them at night?

If one parent is the primary caregiver, the answers to these and similar questions will usually reveal that fairly clearly. There are cases, of course, where the parents have each assumed a large share of the parenting duties. Perhaps both parents work outside the home, and each of them have a roughly equal share of responsibilities regarding the children. In those cases, the court may not view either parent as the primary caregiver, and must therefore look to other factors in making its custody determination.


Custody cases are seldom if ever a sure thing. Whether you are the stay-at-home parent or the primary breadwinner, be sure to review the facts of your case with an experienced family law attorney. I have years of experience with custody and visitation cases in the courts of Hanover County and all courts in the greater Richmond area. Contact me for a free initial consultation today.

Doug Weatherley, Attorney at Law

804-569-3888



By weatherleyd38885995, Jan 12 2016 07:36PM

The courts of Virginia are authorized by statute to issue emergency protective orders, preliminary protective orders and protective orders, which are all aimed at “family abuse,” including abuse of household members.

Virginia courts can also enter protective orders to protect children from harm, even where the harm does not rise to the level of family abuse. These orders differ from each other; some may be entered more quickly than others, and they all provide different remedies.

Consistent with general principles of due process, orders entered ex parte or with very little notice to the opposing party require a greater showing of harm. Moreover, Virginia protective orders come with built-in expiration dates, which vary according to the type of protective order. Generally speaking, courts can grant protective orders for much longer periods of time following notice to the opposing party and an opportunity to be heard at a full hearing.

Emergency Protective Orders. Emergency protective orders can be issued 24 hours a day, 365 days a year. An emergency protective order can be issued by any circuit court, general district court, or juvenile and domestic relations district court judge, or by any magistrate. Given the urgency of many situations, a law enforcement officer may request an emergency protective order orally, in person, or by electronic means. The judge or magistrate may issue an oral emergency protective order, which must be reduced to writing by the law enforcement officer who made the request.

Because of the emergency nature of family abuse situations, an emergency protective order can be issued ex parte, with no notice to the alleged abuser (the defendant). There must be reasonable grounds to believe that the defendant has committed family abuse against a family or household member and that there is probable danger of more family abuse by the defendant. This can be shown to the judge or magistrate through the testimony, under oath, of the abused person or a law enforcement officer.

An emergency protective order can also be issued when a judge or magistrate issues a warrant charging assault and battery against a family or household member or finds that such a warrant has been issued and there is probable danger of additional acts of family abuse against a family or household member by the defendant. “Probable danger” is presumed, but the presumption may be rebutted.

Because an emergency protective order curtails the defendant’s liberty when the defendant has not yet had an opportunity to be heard, Virginia law provides the following:

A copy of the emergency protective order must be served on the defendant as soon as possible;

At any time, the defendant may file a motion with the court asking for a hearing to dissolve or modify the emergency protective order, and the court should grant a hearing as soon as possible; and

When an order has been issued without notice to the defendant, the issuance of the order cannot be used as evidence to prove that abuse has occurred.

If you feel this information is useful, don't forget to "Like" my Facebook page "Law Offices of Doug Weatherley" for further updates in my practice areas of Divorce, Custody, Support and Criminal Defense.

An emergency protective order expires 72 hours after it is issued. If the 72 hours end at a time when the court is not in session, the order is extended until 5:00 p.m. on the next business day that the juvenile and domestic relations district court (J&DR court) is in session. To gain additional protection, the plaintiff may file a petition with the J&DR court seeking a preliminary protective order or a protective order. When the victim is physically or mentally incapable of filing a petition for a preliminary protective order or full protective order, a law enforcement officer may request an extension of the emergency protective order for an additional 72 hours.

Preliminary Protective Orders. Even where a law enforcement officer has not been involved, a J&DR court can intervene upon the petition of the victim by issuing a “preliminary protective order.” The order remains in effect while the parties wait for their court hearing. A “preliminary protective order” can be issued without notice to the defendant if the petitioner presents evidence showing that the petitioner faces “immediate and present danger” of family abuse or that family abuse has recently occurred. The petitioner will need to swear under oath that those circumstances exist. Some courts will accept the affidavit of the petitioner, while other courts will require the petitioner to testify under oath.

A preliminary protective order can be issued by the J&DR court after a proper petition has been filed with the court. The court services unit or intake office of the J&DR court can prepare the petition together with the victim. When the petitioner states under oath that he or she has recently suffered family abuse or faces immediate and present danger of family abuse, the court may issue the preliminary protective order without any notice to the defendant.

The defendant will be served with a copy of the preliminary protective order. The order will specify a date and time for a hearing to take place so that the defendant will have an opportunity to question the petitioner’s evidence and to present the defendant’s own evidence in the case. The hearing must be held within 15 days of the date when the preliminary protective order was issued so that the liberty of the defendant is curtailed for only a short time before he or she has had a chance to be heard. The court may continue the hearing upon the request of the respondent for good cause. If the hearing is continued, the preliminary protective order remains in effect until the hearing. At the hearing, the petitioner and the defendant will both have an opportunity to present evidence to the court. If the court finds that the petitioner has proven the allegation of family abuse, the court can issue a protective order, which may last up to two years. If the evidence is insufficient, then the court dissolves the preliminary protective order and dismisses the case.

If you feel this information is useful, don't forget to "Like" my Facebook page "Law Offices of Doug Weatherley" for further updates in my practice areas of Divorce, Custody, Support and Criminal Defense.

Courts are understandably cautious when orders are sought ex parte. Sometimes a court may decline to issue a preliminary protective order when no notice has been given to the defendant. If the court declines to issue a preliminary protective order without notice to the defendant, the court schedules a hearing in the matter, and a copy of the petition as well as a notice of the hearing date and time is served on the defendant. After the court hearing, the court decides whether or not to issue a protective order.

Full Protective Orders. A full protective order can be issued pursuant to Virginia Code section 16.1-279.1 when a family or household member has suffered “family abuse.” It is not necessary to show the court that the family or household member faces “immediate and present danger.” Following service of process, notice of a hearing date, and an opportunity to be heard, the court determines whether or not to enter a full protective order. A full protective order can remain in effect for two years.

Protective Order Provisions. Because emergency protective orders and preliminary protective orders are usually issued without notice and an opportunity for the defendant to be heard, the court with those orders cannot include all of the provisions that can be included in a full protective order. Potential provisions for each type of protective order are as follows:

Emergency protective orders, preliminary protective orders and full protective orders can each do any of the following:

Prohibit further acts of family abuse;

Prohibit contact by the defendant with family or household members in order to protect the safety of the family or household members; and

Exclude the defendant from the residence occupied by the parties (this will not affect title to any real or personal property).

Preliminary protective orders and full protective orders can go even further, and also:

Enjoin the defendant from terminating utilities in the premises awarded to the petitioner or order the restoration of utility service that already had been terminated;

Grant the petitioner exclusive temporary possession or use of a motor vehicle owned by the petitioner alone or owned jointly by the parties (this will have no effect on the title to the vehicle); and

Require the defendant to provide suitable alternative housing for the petitioner and any other family or household member, including ordering the payment of deposits to connect or restore utility services in the alternative housing.

Finally, full protective orders can also:

Order the defendant to participate in treatment, counseling, or other programs deemed appropriate by the court;

Grant temporary custody or visitation of a minor child;

Assess costs and attorney fees against either party; and

Grant any other terms or conditions necessary for the protection of the petitioner and family or household members of the petitioner.

The court also may issue a temporary child support order if the respondent has a legal obligation to support any children of the petitioner.

If You have any question regarding obtaining or defending against a Protective Order, feel free to call me for a free initial consultation.

If you feel this information is useful, don't forget to "Like" my Facebook page "Law Offices of Doug Weatherley" for further updates in my practice areas of Divorce, Custody, Support and Criminal Defense.

Doug Weatherley, Attorney at Law

Specializing in Family Law and Criminal Defense in Hanover County and the Greater Richmond area.

804-569-3888

By weatherleyd38885995, Jan 7 2016 06:09PM

If you want to have your spouse kicked out of the marital residence, you’re going to have to (1) get them to agree to leave, or (2) get a judge to order them to leave. Even though it’s tempting, you can’t force your spouse to leave by changing the locks.

If you’re filing for divorce in Hanover County or in the greater Richmond area, one of the best ways to get your spouse out of the marital home is by having a pendente lite hearing. “Pendente lite” is Latin for while the litigation is pending, and it is essentially a hearing that determines how temporary support will be awarded. The court can decide things like child support and spousal support, and it can also award one party or the other exclusive possession of the home.

Of course, an award of exclusive possession doesn’t mean that you have a greater ownership interest in the home. It just means that, at least while the litigation is pending, only one of you has a legal right to be physically present there.

The marital home will be one of the things that is divided between you at your trial or in your separation agreement. If the issue of exclusive possession of the home isn’t addressed at the pendente lite hearing, it will be addressed here. Either the two of you agree that one will buy out the other’s interest (and leave the property by a certain date), or you agree to sell the home and split the proceeds. If you can’t agree, the court (whether Hanover County or other Courts in the greater Richmond area) will likely order that the house be sold and the proceeds split.

Simply put, you can’t act like you’ve got exclusive possession of the home until you and your spouse agree to it, or until you have an order of the court officially granting it to you. Until that time, you can’t change the locks and prevent your spouse from getting in to the home.


Doug Weatherley, Attorney at Law

Specializing in Divorce, Custody. Support, Criminal Defense, and all Family Law matters in Hanover County and the Greater Richmond area.

804-569-3888


By weatherleyd38885995, Jan 6 2016 06:17PM

It is important for Hanover County parents facing a custody or visitation case in Hanover County, or any Court of competent jurisdiction within Virginia, to understand the differences and similarities between the different types of custodial arrangements under Virginia law:

Sole Custody. With “sole custody,” one parent assumes the major role in the physical, emotional, and moral development of the child. The custodial parent has primary authority to make all major decisions affecting the child, who lives primarily with this parent. Sole custody is defined under Virginia Code § 20-124.1 as an arrangement whereby “one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.” For Hanover County parents this could result in unilateral decisions being made in a medical setting or within the Hanover County public and private schools.

Joint Custody. In a “joint custody” arrangement, both parents assume responsibility for the physical, moral, and emotional development of the child, and there are shared rights and responsibilities for making decisions that affect the child. Virginia Code § 20-124.1 provides:

“Joint custody” means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.

Shared Custody. Virginia Code § 20-108.2(G)(3) states that the shared custody child support guidelines will only apply when each parent has “physical custody” of a child for more than 90 days. Under these “shared support” guidelines, the primary custodian will typically receive less child support than under the regular child support guidelines. It is therefore important to understand how days are calculated for purposes of the “90 day rule.” Virginia Code § 20-108.2(G)(3) states that a “day,” for purposes of application of the shared custody child support guidelines:

…means a period of twenty-four hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than twenty-four hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period. This also could be beneficial in deciding which school the child attends if one of the parents happen to live outside of Hanover County.

The shared custody support guidelines may not apply when a parent who has 90 days of visitation has failed to exercise them. In addition, the parents themselves may agree not to apply the shared custody child support guidelines even though the 90-day threshold has been met.

Split Custody. In a split custody arrangement, each parent has primary or sole custody of one or more of the children. Virginia Code § 20-108.2(G)(2) explains that split custody, for child support purposes, is an arrangement in which “a parent is a custodial parent to the children in that parent’s family unit and is a noncustodial parent to the children in the other parent’s family unit.”

Divided Custody. The term “divided custody” describes the status of a child who lives alternately with one parent and then the other for specified periods of time, with each parent having primary custody rights while the child resides with that parent.

How Do Courts Decide Custody Cases in Virginia?

Courts in Virginia are legally required to base decisions regarding custody and visitation on the best interests of the child, applying the factors listed in Virginia Code § 20-124.3. You should go over those factors with your custody lawyer, and determine which factors will favor you in your case, and which will favor the other parent.

From my experience, these are the six most important factors considered by Virginia courts in deciding custody and visitation cases:

1. The Status Quo. The power of the status quo can’t be overstated. If one party stays in the marital home with the children within the county of Hanover school system, they will start with a leg up. They can argue that the children are comfortable in a familiar environment, with established neighborhood friends nearby and the peace of mind found in maintaining the same school within Hanover County. Judges will typically strive to make a divorce as painless for a child as possible, and believe that continuing similar routines in familiar places will aid in the transition. If the child lives in Hanover County, has friends in Hanover County, and has extracurricular activities in the County of Hanover this factor can weigh heavily in favor of the local parent.

2. Primary Caregiver. The judge will want to hear which parent is primarily responsible for day-to-day events and activities with the children, including medical care (doctor’s appointments, prescriptions), educational involvement (homework, parent-teacher conferences, field trips), extracurricular activities (coaching Little League, being a Girl Scout den leader, driving responsibilities), morning and bedtime routines, and even meals and laundry. Obviously, a stay-at-home parent will have an advantage in most of these categories, but that can be overcome by some of the other factors. See The Primary Caregiver in Virginia Custody Cases for an analysis of this important factor.

3. The Parent-Child Relationship. Courts will consider the bond between each parent and the children. This is often difficult to quantify, but evidence of having activities with the child (going for hikes, building model trains together, reading bedtime stories, watching sports together) can help to demonstrate a strong and lasting connection.

4. Which Parent is More Likely to Co-Parent Willingly and Effectively? Even if one parent can “check all of the boxes” with the above factors, this fourth factor can occasionally override them all. If one parent seeks to destroy the other parent’s relationship with the children, and it can be proven, the court will react strongly to such behavior. Which parent is more likely to keep the other in the loop on meetings, recitals, practices and games for the children? Who is more likely to copy the other parent on emails with teachers or administrators? Which parent will willingly consult with the other before making an important decision in the child’s life? Has either parent disparaged the other in the presence of the child, or allowed others to do so? Has either parent used the child as a conduit for inappropriate information from parent to parent, or as a message delivery system regarding the divorce? Is there written or recorded evidence of this behavior? If so, it could be a game changer. Judges typically want to reward good behavior and punish bad behavior. And they don’t want to award primary custody to a parent who will abuse the position of power and authority that the court has granted them.

5. The Reasonable Preference of the Child. Virginia Code § 20-124.3 instructs the court to consider the child’s “reasonable preference” as to custody and visitation, “if the court deems the child to be of reasonable intelligence, understanding, age and experience.” However, this is a high bar to clear, and having your child testify can easily backfire. Many judges follow the mantra that “whoever calls the child as a witness, loses.” This is presumably based on a theory that a parent who is willing to put the child on the witness stand is not really pursuing the child’s best interest. So, proceed with caution in this area. Is the child a mature teenager? Will the child’s reasoning for his or her preference be compelling? Can the testimony take place “in camera” (typically in judge’s chambers or out of the earshot of both parents)? The answers to these questions can determine the wisdom of putting your child on the stand, which should be a rarely-employed tactic in Virginia custody cases.

6. Any history of violence or abusive behavior. This factor also has the potential to overwhelm all others, as the court will not place a child in harm’s way.

Denial of Visitation

Parents who take it upon themselves to deny visitation rights without following the proper channels through the courts, do so in violation of Virginia law. Even in cases of non-payment of child support, it is simply not appropriate for a parent to arbitrarily deny court-ordered visitation.

A parent who refuses to allow another parent visitation that has been court-ordered risks being found in contempt of court, thus subjecting themselves to possible jail time or a fine. Denial of visitation by a custodial parent can also result in the court transferring custody to the other parent.

It is also important to understand that the noncustodial parent’s failure to pay court-ordered child support does not legally justify the custodial parent’s denial of visitation. The reverse is also true: denial of visitation does not justify non-payment of child support.

Modification of Custody and Visitation

Custody and visitation issues are never permanently settled (until the children are grown). As children grow, parties remarry, and priorities change, a modification of custody and visitation may be required.

Virginia Code § 20-108 allows for modification of a custody or visitation order when (1) there has been a material change of circumstances and (2) it is in the best interest of the children to modify custody or visitation. The change of circumstances must have taken place after the entry of the last order in the case—it cannot be based on testimony or evidence that pre-dates the entry of the last order.

The change of circumstances may be either positive or negative. A positive change could be a parent’s remarriage or getting a new job with either a higher salary or more flexible work schedule. A negative change could be a child developing behavioral problems, one parent struggling with substance addiction, or a criminal conviction of a parent. As stated above, one parent’s denial of court-ordered visitation may also be a material change of circumstances allowing for a modification of custody.

If the court determines that there has been a material change of circumstances, it will then proceed to examine the best interests of the children by applying the factors listed in Virginia Code § 20-124.3. These are the same factors that were considered at the initial custody hearing, and include the age of the children; the health, needs, and relationship that each child has with each of their parents; and for any child of sufficient age, the child’s preference as to custody.

Relocation

With more and more parents finding the need to move due to family connections, changes in employment and varying costs of living in different states across the county, relocation has steadily become a hot topic in custody cases. For answers to your questions on relocation, see Relocation in Virginia Child Custody Cases.

Grandparent Custody and Visitation

Virginia law allows any “person with a legitimate interest” to petition for custody or visitation. The Virginia Code specifically defines “persons with a legitimate interest” to include grandparents. Our custody lawyers are experienced in representing grandparents in custody and visitation disputes, particularly where both parents are unfit or “out of the picture” for one reason or another. For answers to your questions on grandparent custody and visitation, see Grandparent Rights in Virginia.

Home Studies and Guardians Ad Litem

The judge may not be the only official with whom you will have to deal in your custody and visitation case. First, the judge may order “home studies” in your case, in which a social worker is sent to the homes of the contending parents. The social worker will evaluate each home, speaking with each parent (and sometimes the child), and report back to the judge. Second, the judge may appoint a guardian ad litem, a lawyer who shall be tasked with representing the best interests of the child. The guardian ad litem will speak with each parent and the child, and make a recommendation regarding custody and visitation to the judge. For more information, see The Role Of The Guardian Ad Litem In Your Case.

If you are contemplating a custody battle, call me for a free initial consultation.

Doug Weatherley Esq.

I Practice in all Courts in the greater Richmond area with my office located in Mechanicsville, within Hanover County

804-569-3888

RSS Feed

Web feed