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Visitation (Virginia)


"duckling pool' by author

“duckling pool’ by author

An essential element of any child custody arrangement is visitation for the non-custodial parent.  Under the law, the parent who does not have physical custody is presumed to have visitation rights.  There are no recorded cases of a judge completely denying the right of visitation.

Ideally, visitation arrangements are worked out between the parents and ratified by the judge.  If the parties cannot agree, the judge will determine visitation based on what would be in the best interests of the child under the following guidelines in listed Va. Code § 20-124.3:

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.

While judges have never denied visitation rights, they do have the option of ordering supervised visitation if it is deemed necessary and in the best interests of the child.

Denial of visitation by the custodial parent is a violation of the custody order, and the non-custodial parent may petition the court to enforce it.  On the other hand, failure to return the child at the designated time has more serious potential consequences.  If the child is not returned within 48 hours, it may be considered an abduction.  If the abducting parent stays in Virginia, it is a Class 1 misdemeanor, punishable by up to 12 months in jail and up to a $2,500 fine.  If the abducting parent crosses state lines, it is a Class 6 felony, punishable by one to five years in imprisonment, or up to 12 months in jail and/or $2,500 fine.

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.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

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.

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.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

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.