The Role of a Mediator
Mediators are an essential tool in the custody and visitation process. Using these people effectively can mean the difference between a $30,000 lawyer bill and a $1,000 bill. Lawyers are there to assist clients in working through the overly complex paperwork, arguments, standards, and judges that come along with the law. Mediators are there to limit the number of arguments that are brought out in front of the court. Agreements reached while working with a mediator are not necessarily binding, but may still play an important part in your case.
I often make the recommendation to my clients that they should seek the services of a qualified mediator before seeking a contested divorce or a contested custody and visitation case. When parties cannot come to an agreement, this often results in the attorneys for both sides sending passive aggressive e-mails back and forth. This tends to drive up the bill that clients will receive at the end of the litigation.
There are two ways a person can find a mediator to help them; court appointment and private mediation. There are plenty of private mediation firms in Virginia that will sit down with you and listen to the concerns of both sides. A court appointed mediator can usually be obtained by asking the attorney representing you to file for one.
Once you obtain a mediator, the process is simple. Both sides and their attorneys will sit down with a mediator to discuss the issues that they are most concerned about. Mediators will listen to both sides in a fair and objective manner. They will try to reach an agreement by both sides. Once an agreement is reached, the parties can ask the court, through their attorney, to make that meditation agreement part of the final order.
When you are considering filing for custody or visitation of your child, make sure to look for a mediator first. Ask your attorney if they know of any good mediators that can help with your case. Again, a mediator can save you an extremely large attorney bill.
Custody and Visitation in Virginia: Part 3
The court considers one things and one thing only when deciding on issues of custody and visitation; the Best Interests of the Child. This is a term of profession, and it does not mean what a lot of people think it means. The best interests of the child are not necessarily what the mother or the father want for the child. The court has established a multi-part test in order to define what is truly in the best interest of the child. A Guardian ad Litem is often appointed to help the court decide the factors involved. Due to the complex nature of this standard, it is always important to have your own attorney to argue that the Guardian ad Litem or the attorney for the other side is wrong. Here is some basic information about the best interest standard.
The best interest of the child is defined by the Virginia Legislature. It can be found in the Virginia Code at § 20-124.3. There are a total of ten factors the court takes into consideration when making these decisions:
1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
2. The age and physical and mental condition of each parent;
3. 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;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative 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;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
An experienced attorney can argue that each of the factors may hold more weight in any given case. As you can see, the sheer number of factors would allow both sides to make good arguments for why a child should live with them. Number 10 is so vague that it would allow for the introduction of evidence on a number of different issues.
Although child custody and visitation may seem simple at first, there is a lot of complexity involved in this area of law. It is always advisable to have your own attorney represent you on custody and visitation cases.
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.