Posts Tagged ‘Best Interest’

Will I get custody if I have a bigger, nicer house?

Sunday, February 10th, 2013

That’s not exactly the question I got this week.  Instead, the actual question was about whether parents with shared physical custody needed to have comparable living arrangements.  Although I must admit that I’ve had the question that is the title of this blog post in the past.

The short answer to both of these questions is ‘NO’.

There is no requirement in VA that the children be given their own rooms, or that they be provided a home with a yard for outside play.  Also, there is no requirement in a shared custody arrangement that the homes be comparable.

Each of the homes must be ‘appropriate’ for the children.  But appropriate can encompass a lot of differences.  The main thing that is reviewed is whether the child has a safe place to sleep (so we generally look for a bed in a bedroom instead of a recliner in the living room), whether the home appears to be safe (no hanging open wires or holes in the walls), whether the home is relatively neat and clean (although ‘messy’ may be ok, dirty or filthy is usually not ok)….basically safety issues.  It is not necessary to have separate bedrooms for each of the children, although we would tend to discourage putting children of opposite sexes in the same room once one of them reaches the age of puberty.  Again, safety issues.

I know that when I grew up we had a three bedroom home with a ‘parent’ bedroom, a ‘girl’ bedroom and a ‘boy’ bedroom with the ‘baby’ staying in the parent room until he or she was able to consistently sleep through the night so as not to interrupt the other siblings.  From my experience this was the norm in my community and very few children had their own bedroom, unless they were the only child of that gender in the home.

There are also many cultural differences and what is acceptable in one culture is not necessarily acceptable in another, but that is a personal choice of the parent as long as the child is safe.

A big yard is also not required, so long as the parent has the ability to take the children to a place where they can have outside play.  To be quite honest, many families do not take advantage of their backyards for playtime and instead the children may spend more time at a park where they can play with their friends.

The relative financial position of the parents and the ability of one parent to provide a more luxurious home environment is not as important as the interaction between the parent and the child.  We’ve all seen children who have lots of toys and really enjoy playing with a box.  Also, financial disparity is addressed through child support, not custody and visitation.

What does the Commonwealth of Virginia look at when determining custody?  I’ve written a couple of blog posts here and here that go into the details of what the courts consider.  And of course you can review the actual code section here.

Bottom line?  The courts don’t really care who has the bigger home or the nicer furniture or the best car.  Assuming that the child’s safety is not an issue, what is important is the interaction of the child and the parent.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

What is a GAL and why did the judge appoint one in my case?

Tuesday, May 15th, 2012

If you are charged with a crime, and there is a possibility that you might be sentenced to at least 6 months in jail, and you cannot afford an attorney, the Judge can appoint an attorney to represent you in that case.  This attorney is appointed to advocate on your behalf and to assist you in your defense.

The Court in Virginia can also appoint another type of attorney if your situation meets the criteria set by the court, and the Judge feels it is appropriate.

‘GAL’ stands for ‘Guardian Ad Litem’.  There are two parts to this term.  Part one is ‘Guardian’ which means someone who acts for the benefit of another, and part two is ‘Ad Litem’ which means ‘for the Lawsuit’.  So, the court may appoint someone to act for the benefit of another for the purpose of the lawsuit.  The person that is appointed by the court is called the ‘GAL’.

The court may appoint a GAL when a party to the lawsuit is incapacitated in some way.

Most of us think of incapacity as having a mental or health disability, and this is considered a physical incapacity.

Someone is also considered legally incapacitated when they are unable to attend court themselves.  This might be because they are in the military and stationed away from home.  Or perhaps the person can’t be found because none of the persons involved in the court case knows where they live now.  Or perhaps they are incarcerated.

In all of these situations, a GAL can be appointed to represent the adult who is not able to represent himself.  The role of the GAL in these cases is to make sure that the adult is treated fairly in the legal case and that any decision that is made by the court is not going to permanently put the represented person at an unfair disadvantage.

Another type of incapacity is based on age.  A person under the age of maturity, which is the age of 18 in Virginia, is also considered legally incapacitated.

If a child, under the age of 18, is charged with a crime it is possible that the court will appoint both an attorney to defend the child against the criminal charges and a GAL to look out for the best interests of the child.

Another time when the court might appoint a GAL is during a legal case regarding custody or visitation of a child.

When parents are fighting over custody and visitation of their children, the courts base their decisions on the best interests of the child.   Most of the time, the parents really do believe that what they are trying to do is in the best interest of the child.  But everyone must understand that the parent’s vision of the best interest of the child is colored by the position of that parent.  That is why the courts will often appoint a GAL to represent the best interest of the children.

The GAL does not represent either the mother or the father, and if either parent wants to have an attorney, they should retain one on their own.

The GAL  for the child has the ability, and the duty, to look at all aspects of the child’s life.  The GAL is able to talk to the child’s teacher, doctor, day-care provider and any other person that can bring input about the child’s life.  The GAL also talks with each parent and will usually do a visit to the parent’s home, generally while the child is there so the GAL can see how the child and the parent interact with each other.

If the child is old enough, and mature enough, the GAL will listen to what the child wants and take the child’s desires into consideration.  But, the GAL is not there to advocate for what the child says he/she wants.  The GAL is there to report on the situation and to make a recommendation on what is in the child’s best interest.

The GAL might provide a written report to the Judge before the trial, or the GAL report might be given as oral testimony at the trial.  In either case, the Judge will consider the GAL report as one additional piece of evidence to be considered.

The Judge is the one that makes the final determination.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Can I terminate my child’s father’s parental rights?

Saturday, October 15th, 2011

I get this question fairly often.  It is usually from a mother who also says that the father has no contact with the child at all and he hasn’t paid any child support.  Often, there is a comment that the father is in jail for some reason or another, and perhaps there is an order of protection for both the mother and child to keep the father away.

I’m not entirely sure why they want the father’s parental rights terminated.  If the father is not in the picture at all, then he is not a problem to either the mother or the child.

If the mother wants to make sure that she is the only one making any decisions for the child, she can always file for full legal and physical custody with no visitation, or very limited, or only supervised visitation from the father allowed.  If the father is really as absent as the mother says, he is not likely to argue against her and it is likely that the court will award her full custody.  If the father is actually in the picture, but a detriment to the child, then the court may order only supervised or no visitation with the child.

If the father objects to the full custody being given to the mother, he can argue that in court and the court will make a determination based on the best interests of the child.  The Commonwealth of Virginia is interested in doing what is best for the child, not supporting one side in an argument between the parents.

Also, so long as the father is the legal father, the mother can be awarded child support which must be paid by the father.  If the father does not pay his court ordered child support, he might be put in jail for that failure.  Again, not really a problem for a mother who apparently does not even like her child’s father.

If the mother is married to someone who is not the child’s father and she wants to have her new husband adopt the child, a step-parent adoption process can be followed which will end up as a sort of termination of the father’s parental rights when the father agrees to the adoption, or if the adoption is approved without the father’s consent.

There is also the situation where the mother wants to terminate a father’s parental rights because the mother is receiving social services and they have told her that they will go to court to have the father ordered to repay the public funds as child support.  The mother wants to receive the funds, but she does not want the father to have to pay.   And yes, sometimes the father is living in the home with the mother and the children.

The Commonwealth of Virginia has determined that it is the obligation of both parents to provide for their children.

So the short answer to the question of whether you can terminate your child’s father’s parental rights is generally ‘no’.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Who Gets Custody of the Children — Take 2

Sunday, October 9th, 2011

Some time ago I wrote a blog post on Who Gets Custody of the Children and the information there is still valid.

But that post assumed that the children were born during a marriage that was ending in divorce, which is not always true.  More and more children are being born into ‘relationships’ that do not have the benefit of a marriage ceremony.   And often these children have siblings with different fathers or mothers and the child may be very close to a step-parent.  And often the children are actually living with grandparents, or other relatives, who have taken over the parenting role.

What happens in these complicated situations?

The basic rule of  doing what is in the best interest of the child still stands, but there are some additional hurdles that must be considered.  First of all, there is a presumption in Virginia that being with the natural parents is in the best interest of the child. If someone other than a natural, biological parent wants to have custody of the child, they must first prove that the bias for the natural parent is wrong in this case.  Generally this means that the other person must prove that it would be harmful for the natural parent to be granted custody.

This often puts the entire family at odds with each other as Grandma goes into court and says that her own child is not a fit mother or father for the grandchild.  Often, there is evidence of drug abuse or other activity that the courts use to determine that the child really is better off with Grandma and Grandma is granted custody.

Or it might be that the biological parents are really too young to be able to take care of the child and they willingly give up custody to Grandma who might be in her late 30s or early 40s and is more established.  Grandma is also still at an age when she could have more children of her own and she is looking forward to being a mother again.

Fast forward a few years and now one or both of the biological parents are finishing school and getting on their feet and they now want to take over the parenting role for their child.

The courts will look at all of the evidence about the lifestyle of all of the parties, and at the relationship that the child has with each of them.  The judge will still make the decision based on what is in the best interest of the child given all of the facts surrounding this particular case.

If the biological parents have had little contact with the child, the courts might order that the primary custody stay with the grandparent for a time and the biological parents be given increasing visitation so that the child can form a relationship with the parent with a goal of moving custody to the parent in the future.

If the biological parents have had a lot of contact with the child and there is already a bond between the parent and child, the courts are more likely to grant custody to the parent and the grandparents will then become what they were meant to be….grandparents.

Based on what I said before, the grandparents with custody might decide that the best path for them to take is to keep the child from visiting with their biological parents and that way they can keep custody.  But remember #6 in the factors to be considered when determining custody.  The courts will not look kindly on any custodian who keeps the child away from the biological parents without a really good reason, and that in itself might be enough for the courts to decide that custody must be taken from Grandma and given to the biological parent.

Also, as I mentioned last week, relocation may be a problem.  As I said before, the courts cannot keep YOU from leaving the area, but the courts may be able to stop you from taking the child with you.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Watch what you put on Facebook!

Sunday, September 25th, 2011

We all know that you shouldn’t put things like your home address or phone number on facebook.  But a lot of people put things on Facebook that can really ‘come back to bite  you’.  Talking to a good friend in person or on the phone is one thing, but typing some things onto Facebook can cause very severe repercussions, especially if you are in some sort of legal situation.  Privacy settings get changed relatively often these days and you really don’t know who is reading what you post.

In fact, you should always assume that whatever you post is being seen by everyone, including your soon-to-be-ex or his/her attorney and the Guardian Ad Litem that has been assigned to help the court make a custody decision.  Posting derogatory remarks about your spouse often backfires and leads the decision-makers to think poorly about you and your ability to co-parent your children effectively.

Talking about a new boyfriend and what a great weekend you spent together with your kids will possibly send you back to court when your children’s father points out that there was a court order that did not allow you to have overnight visitors of the opposite sex when the children were present.

Talking about your adventures on the new horse at the stable where you ride will not show you in a good light when you are brought into court for failure to provide the child for visitation and your excuse was that you are in a high-risk pregnancy that does not allow you to drive for over an hour to bring your child to his other parent after you moved away to be in a different state with your new husband.

Stories and pictures of you skiing do not help when you are trying to get disability or workman’s comp because of a back injury.

Bragging about having a new wide-screen TV that ‘fell off the back of the truck’ just might show up as evidence in a criminal investigation.

A picture of you with someone might be used as evidence that you and the person knew each other even though you say you never met.

Pictures of you with your ‘friend’ might just show up in your divorce proceeding as evidence of an extra-marital affair.  Or pictures of you out drinking with your buds might just show up in your custody case.

And don’t forget that potential employers might be reading when you write that your job is soooo boring and the time and date stamp of the post shows that you post on Facebook a lot while you are supposedly working.  I especially like the posts that tell the world that you think your boss is a ___ (fill in the blank).

You might think I’m just making this stuff up, but I’m not.  These things are really happening.

Text messages and Facebook posts are showing up more often in legal actions and they can often derail your legal plans.

Just be careful of what you post.  Remember that what you post, or what comments you make, are not just being seen by your closest friends.  Your fiercest enemy might also be watching!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.