Custody

Custody and Visitation in Virginia Part 2

Child custody and visitation is a multi-step process in Virginia that starts with the determination of Venue and Jurisdiction. The next step in the process is filing the case. A case for custody or visitation can be filed one of two ways; in the Circuit Court as part of a divorce, or in the Juvenile and Domestic Relations Court.

     Custody and visitation can be decided two primary ways in the Circuit Court. The first is by agreement between the parties. An agreement can be reached either through meditation or working closely with your attorneys. Mediation is a court service that provides an impartial third person to listen to the concerns of both sides. The mediator will create an agreement that meets the needs of both sides. This allows for the parents to save time and money by not going to trial. Parents can ask for a mediator to be appointed to their case as part of the filing procedure.

     The second method of establishing custody and visitation in Circuit Court is through a contested hearing. Both sides will need to put on evidence at the hearing that will help the court to determine what is in "the best interests of the child". This is a rather technical phrase that takes into consideration a number of factors. A guardian ad litem may be appointed that will do an objective investigation to inform the court of what they think is in the best interest of the child. These trials usually last a number of days, and can include expert testimony, documents, and professionals who watch over the child.

     There is a wider variety of ways to handle custody and visitation in the Juvenile and Domestic Relations Court. Parents do not necessarily have to be married in order to file for custody. If parents are not married, then they should look to the Juvenile and Domestic Relations Court. Custody and visitation can be handled the same way as it is in Circuit Court; by an agreement between the parties or by a contested hearing to determine the best interests of the child. The Juvenile and Domestic Relations Court also allows for entrustment agreements. These agreements allow for a parent to give up their rights to a child voluntarily. A fourth way of handling child custody and visitation in the Juvenile and Domestic Relations Court is through the adoption process. A child can be adopted by a new spouse through the courts. This method allows for an involuntary termination of the parental rights.

These are but a few of the means of determining child custody and visitation. If a couple is married, then they may want to go through the Circuit Court to determine the best way of handling the issue. If the couple is unmarried, then they will likely need to go to the Juvenile and Domestic Relations Court.

Custody and Visitation: Part 1

Custody and Visitation are two of the most common types of cases that Family Law attorneys will see. Custody deals with who the child should primarily live with and who should control where the child goes to school. Visitation deals with how often the non-custodial parent gets to see the child. Most of the questions that I get from clients involves some basic information that everyone should have when dealing with child custody and visitation. This is the first in a series that explains the process and common terms involved.

     The first thing that I want to talk about are the terms that we lawyers use when dealing with child custody. Terms are important, because the law is built on terms and words. Without understanding the terms behind the law, a judge may deny your petition and leave you without your child.Some common terms that you will run into when dealing with custody and visitation issues are jurisdiction, venue, and the best interests.

     Jurisdiction is a word that we lawyers invented to describe how courts are able to have power over you. There are two types of jurisdiction; subject matter and procedural. Subject matter jurisdiction deals with which of the three court types in Virginia will deal with your case; Juvenile and Domestic Relatoins Court, General District Court, or Circuit Court. I previously talked about the differences between these courts. Juvenile and Domestic Relations Courts are the ones that handle issues related to children. Sometimes the Circuit Court will hear issues of custody if they were the ones that handled the divorce process.

     Procedural jurisdiction is a fancy phrase that simply means; are you in the right area or state for your case? One of the largest issues that I see when dealing with interstate couples is deciding where to file for custody. There is an interstate law known as the UCCJEA that states actions should be brought where the child has lived for six months prior to the court case. If the child lives in Minnesota, you cannot normally bring a custody case in Virginia.

     The second major term is Venue. Venue deals with which of the courts is the best one within your area to bring the suit in. This is determined by connections with the surrounding area. For instance, if the child lives in Alexandria, VA for six months, you have jurisdiction in Virginia, and Venue is in Alexandria's Juvenile and Domestic Relations Court. There is a lot of law surrounding Venue, and it is best to speak with an attorney about this. A case may be transferred if you have the wrong Venue.

     Finally, the most important phrase of all is "the best interests of the child". First and foremost, the Court will always consider the interests of the child to be the most important factor in determining custody or visitation. These interests are written in the law, and your normal family lawyer will be able to tell you exactly what the court will consider when determining what is in the child's best interests.

     In the end, there are a lot of complicated terms used in Family Law. It is always best to get your own attorney to help you. However, this basic understanding will allow you to speak with the attorney to understand what is right for you.