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Presentation: Pendente Lite Orders in Virginia


This is a presentation on pendente lite (or temporary) orders in Virginia, which can be obtained while family law cases are being litigated.

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The Law Defined: Physical Custody


"sticking together" by author

“sticking together” by author

In a previous post, we briefly discussed the two types of child custody (legal and physical).  Here, we will go into physical custody in-depth.

Physical custody is what it sounds like: the parent with whom the child resides.  This arrangement means that the child’s legal residence is with the parent whom the court has granted physical custody.  It also means that the custodial parent has the responsibility to care for the child’s immediate day-to-day needs, such as food, clothing, shelter, and entertainment.

Courts may grant sole or joint physical custody.  In sole custody situations, the non-custodial parent is entitled to visitation rights, which can be worked out between the parties or set by the judge based on the best interests of the child.  In a joint custody arrangement, the parents divide their time with the child more-or-less equally.

After the judge signs off on an agreement or rules on the merits, the custody arrangement is final unless there is a finding that a change in circumstances affecting the best interests of the child warrants a modification of the custody order.  All custody orders automatically expire when the child turns 18 (can be extended to age 19 or graduation from high school, whichever comes first).

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

The Law Defined: Child Custody


"close-up chick" by author

“close-up chick” by author

In popular culture and media, the term “custody” gets thrown around a lot.  But what does it mean?  There are two types of custody: physical and legal.  The two are related, but have meanings that are quite different.

Physical custody: Determination of where child will live as well as who has responsibility for day-to-day care.  Courts can grant sole physical custody with right of visitation to the non-custodial parent, or grant joint physical custody where both parents share custody through a parenting plan or similar device.

Legal custody: Determination of who makes long-term and far-reaching decisions as to the child’s welfare, health, education and religion.  This does NOT include day-to-day care, such as meals and entertainment.  Courts may grant joint legal custody or sole legal custody.  Separately, if a judge grants joint custody to parents who have trouble agreeing s/he may also grant final decision-making authority to one of the parents.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Clearing the Air: Losing Child Custody vs. Termination of Parental Rights (Virginia)


"mother and duckling" by author

“mother and duckling” by author

A common misconception in family law is that loss of child custody amounts to a termination of parental rights.  These are very different terms with very different legal consequences:

LOSS/LIMITATION OF CHILD CUSTODY: You lose the physical custody of your child (he/she lives with the other parent full time) and/or the ability to make decisions as to your child’s daily care.  However you still have the right to ask for visitation.  You also maintain the right to challenge or change the custody determination at a later date.  You legally still have a say in influencing your child’s values, religion, schooling and healthcare, and your child can still automatically inherit from your estate or vice versa absent a will saying otherwise.  And, most importantly, you maintain responsibility to support your child financially (i.e., you are not excused from child support!).

TERMINATION OF PARENTAL RIGHTS: You lose all of your rights over your child, and with it any right to be involved in your child’s life.  Effectively, you are no longer legally recognized as the parent, meaning you have absolutely no rights of visitation, and the child will no longer be able to inherit from you or vice versa absent a will saying otherwise.  This also means you no longer have the responsibility to give the child any financial support.

The bar for court-ordered termination of parental rights is also much higher than a change in custody arrangements.  For custody, a material change in circumstances for either or both parties is necessary.  However, a complete termination can only arise from clear and convincing evidence of abuse and neglect.

While a parent can voluntarily give up custody rights, it is not possible to do the same for parental rights.  That is, you cannot “sign over” your parental rights to the other parent.  Only a court can terminate parental rights, and it will only do so if there is a third person ready to “take over” care and support for the child.  A proceeding for termination of parental rights must start with a petition to the Juvenile and Domestic Relations Court, after which the judge will appoint a guardian ad litem for the child and the Department of Social Services will begin a thorough investigation.

Parental rights are also terminated as a matter of course in adoption cases.  In cases of giving up a child for adoption to a non-relative, your family members also lose rights of visitation and inheritance.

Further information: Virginia Legal Aid Society: Termination of Parental Rights

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Third-Party Custody and Visitation (Virginia)


“faceless” by author

The majority of child custody and visitation disputes involve the parents.  However, there are cases where someone other than either parent can obtain custody if there is sufficient evidence that it is in the best interests of the child for the court to do so.

Third party custody or visitation is limited only to “person[s] with a legitimate interest,” which is defined in the Code of Virginia § 20-124.1 as “includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court,” and is “broadly construed to accommodate the best interest of the child.”  The person seeking custody has to show that the child’s parents or legal guardians are unfit by clear and convincing evidence, which is a high burden of proof.  If the court determines that he or she has standing to challenge parental preference, it will treat the person as co-equal with the parent(s) in proceedings going forward.  In other words, the third party “person with a legitimate interest” will have an fair shot to show the court that it is in the child’s best interest to grant custody to someone other than either of the parents.

There are a number of court cases further defining what “legitimate interest” entails.  A nice summary of these cases and more can be found here.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Building up vs. tearing down


“fisheye loop” by Author

To say that child custody is a delicate matter is an understatement.  Emotions run high whenever a child is in the middle of a dispute, and when a court has to get involved, the stakes are all that much higher.

A child custody hearing is essentially a trial, complete with opening and closing statements, witness testimony and exhibits.  The object is the convince the judge that your proposed custody arrangement is is in the best interests of the child.  The judge will look at the evidence and testimony and consult the local jurisdiction’s guidelines as to what will be the best arrangement for the child.  And absent evidence to the contrary, the default position is that the parents should have joint physical and legal custody.

Because this is such a touchy subject, it is easy to go ahead and try to demonize the other party and convince the judge that s/he is incompetent or incapable or something worse, and therefore would be unfit to have his/her proposed custody arrangement in place.  Pointing out the other side’s faults may work well in a political campaign, but in these matters it is much more important to try to paint yourself or your client in the best light possible.  Do not get bogged down in telling the judge everything wrong with the other party — instead, tell the judge why you are a good parent and rebut every point that the other side tries to charge against you through friendly witnesses and positive evidence.

See also:

Child custody guidelines — DC ST § 16-914
Child custody guidelines — Va. Code § 20-124.3

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.