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Child Custody

Questions of child custody can arise whenever parents go their separate ways, whether or not they were married. Parents, grandparents and stepparents often have questions during the divorce or separation process. Below are answers to many common questions provided by the experienced lawyers of Duff & Kronfeld, P.C..

Frequently asked questions

Q. What is joint legal custody?

A. Legal custody has to do with major decisions that affect the health and welfare of the child. The court’s presumptive position is that it is in the best interest of the child if both the mother and father make these decisions together. These decisions include religion, education, and medical. For example, if you decide to take your 10-year old child skydiving, you get consent from the other parent. Failure to do so could jeopardize your custodial rights. This presumption in favor of joint legal custody can be overcome in certain situations.

Q. When will a court order sole legal custody?

A. The court will typically order sole legal custody when there is evidence of physical abuse. They will also order sole legal custody when the parties are unable to communicate due primarily to the behavior of one of the parents. The court will also order sole legal custody when one parent refuses to communicate with the other parent about major decisions affecting the child.

Q. What is physical custody?

A. Physical custody is where the child primarily resides. The parent who has physical custody, generally provides the day-to-day care and decision-making for the child.

Q. Will the court order shared physical custody?

A. We are beginning to see more judges in Northern Virginia giving the non-custodial parent more visitation time, including a physical sharing during the summer months. Shared physical custody can work so long as the parents are able to communicate effectively with one another and live fairly close to each other. Many Northern Virginia attorneys are in agreement that as more psychological experts testify that shared physical custody is in the children’s best interest, the more courts are going to be amenable to award shared physical custody.

Q. If I agree to shared, physical custody, will my spouse still have to pay me child support?

A. If the non-custodial parent has the child more than 90 days per year, the court will use the shared custody guidelines to determine the amount of child support. Although the shared guidelines will result in a reduced amount of child support from the sole guidelines, the parent making more money will still have an obligation to pay child support to the parent making less money.

Q. How does a judge decide which parent is more deserving of custody?

A. Virginia Code §20-124.3 provides the factors the court must use to determine what is in the best interest of the children. Early in your case, you and your attorney should develop evidence in support of these factors. This should include witnesses that can corroborate your testimony. Such witnesses may include family members, friends, teachers and counselors. Typical documents that one presents to the court include pictures, school progress reports, calendars, emails and forms for extra-curricular activities.

Q. If I have custody of my child, can I move to another state?

A. The courts require that you give your former spouse and the court 30 days advance notice before moving. This allows the non-custodial parent to file an injunction preventing you from removing the child out of Virginia until the court has an opportunity to conduct an evidentiary hearing to determine if the desired relocation is truly in the child’s best interests. The custodial parent has the burden to show that the move is necessary and will not damage the relationship between the children and the non-custodial parent.

Q. If my ex-spouse and I share joint legal custody, can he/she take our child out of the country without my consent?

A. Although a parent should not be taking a minor child out of the country without the consent of the other party, it will not be considered parental kidnapping. If this is a concern, you may want to put in an order that neither party may take the child out of the country without written consent from the other parent or by court order.

Q. If I am allowed to move, will it affect the amount of child support I receive?

A. Relocation will generally not change the child support guideline figures; however, the cost of traveling for visitation by the non-custodial parent is a factor the court may consider to deviate from guideline child support.

Q. Can I allow my significant other to move in with me?

A. If you are in the midst of a custody battle, having a significant other move in is a bad idea. Additionally, you should not have your significant other spending the night when your children are at home.

Q. When does child support end?

A. Child support ends when a child attains the age of 18 years, or becomes otherwise emancipated, or by further order of the court based upon a material change in circumstances. Child support shall continue to be paid for the child who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever occurs first.

The court may also order the continuation of support for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, (b) unable to live independently and support himself, and (c) residing in the home of the parent seeking or receiving support.

Please note that if you are paying a certain amount of child support each month for several children, Virginia law does not allow for you to reduce your child support when one child emancipates without a court order. If one child emancipates, it is important for the parties to recalculate the guidelines and submit an order to the court. If the parties are unable to agree, then the paying party must file with the court asking for a modification of support based upon one child emancipating.

Q. Will the court order me to pay for my child’s college tuition and expenses?

A. No. Once a child is emancipated, there is no legal obligation for either party to pay for college expenses. However, if one party obligates themselves to pay for tuition or college expenses in a settlement agreement, the court will enforce the agreement and obligation.

Q. Which parent pays for extracurricular activities?

A. Generally, the custodial parent who is receiving child support will pay for extracurricular activities. However, most settlement agreements will have a provision deciding whether these expenses be shared equally or shared pro rata based on the parents’ respective incomes.

Q. As a grandparent, do I have any rights for visitation with my grandchild?

A. Yes, but the grandparent must prove actual harm to the child by denying the visitation. It is a difficult burden, but for those grandparents who have been very active with the child, it is not impossible to show harm to the child by depriving him or her of such continued grandparent contact.

Q. Can I include a provision in a prenuptial agreement that I will receive sole custody of any children we may have, should we get divorced?

A. No, custody and visitation of a child is not a contractual event. The court has continuing jurisdiction over a child until they are emancipated, regardless of what agreement may be made by the parents.

Q. How does the use of social networking sites affect custody and divorce proceedings?

A. Please be careful what you post on social networking sites. Such postings are being accessed and used by attorneys to discredit the opposing party, from inappropriate relationships to failure to report true income for support issues.

Q. What is mediation?

A. Mediation is a process where a third party (mediator) works with the parties to try and resolve their issues. The attorneys at Duff & Kronfeld, P.C. have had great success with this process by retaining retired judges through The McCammon Group. Typically, the judge will first have a telephone conference with both attorneys to discuss the major issues in the case. After this telephone conference, the attorneys will send the judge any pertinent information we would like for him/her to consider. At the mediation, the attorney and parties sign a confidentiality agreement and neither party can use what is discussed or negotiated against the other party in court. The judge will meet with the attorneys and clients to go over the procedure, and then we separate the parties into two conference rooms where negotiations begin.

These FAQs are not, nor are they intended to be, legal advice. For answers to all of your child custody questions, call Duff & Kronfeld, P.C. in Fairfax at 703-591-7475 or contact us online today.

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