Best interests of the child – age, physical, and mental condition of each parent

Paragraph 2 of § 20-124.3, “Best interests of the child; visitation” considers the “age and physical and mental condition of each parent.”

Many people assume that this will preclude a parent with diagnosed mental or physical issues from having primary custody.  That is not the case.  The Court will review all relevant issues and make the best determination.

For instance, suppose one of the parents has been diagnosed with depression.  If that parent actively seeks counseling, takes prescribed medications as indicated, and functions normally in society, that parent may be given far more weight by the Court as the better parent than one that denies a problem exists and has documented issues dealing with society.

If a parent has a physical disability, the Court will consider what impact that disability may have in the ability to care for the child.  Someone that has multiple sclerosis that inhibits their ability to walk may have more trouble caring for a toddler, but may not have any issues caring for a pre-teen.

Remember that these are simply conditions that the Court will consider in making a determination.  Rarely does any one factor determine whether or not the parent is a fit and appropriate custodian of the child.


“Best interests of the child”

I am going to spend the next few posts discussing the Va. Code section 20-124.3.  This is the code section that judges use to determine custody and visitation of children when the parents are no longer together. (Or even in extreme cases where an interested party may be granted custody or visitation if the parents are unable to provide appropriate care.)

If you are going through a divorce or are separated and you have children together, it is very likely that you have heard the term “best interests of the child” but were uncertain what that really meant.  When the parents cannot come to agreement, the court looks to many factors to determine who should have primary physical custody, how much visitation should be awarded, and even whether or not legal custody will be joint or sole.

Before beginning the process, some basic definitions need to be provided as to legal and physical custody. Legal custody pertains to decisions regarding major life events, such change in schooling, religion, medical treatment, etc. If the parents have joint legal custody, they must confer with one another regarding those changes. In nearly all cases I have seen over the past several years, parents have joint legal custody. Physical custody refers to with whom the child resides. It is most common for one parent to have sole physical custody with visitation awarded to the other, though physical may also be joint or shared. Sole or shared physical custody may also be expressed as “primary” physical custody with one parent.

Virginia Code section 20-142.3(1) states that in “determining best interests of a child for purposes of determining custody or visitation arrangements” . . . “the court shall consider the following:”

“1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;”

When reviewing this section of the code, a judge may consider any number of facts. For instance, if the child is very young – an infant or a toddler – and one parent has been the primary caretaker, a judge may want some showing by the other parent that they are equipped to respond to the needs of an infant or a toddler. Just because someone has become a mother or father does not mean that they have the skills necessary to care for a young child on their own.

A court will look at each child to determine how those physical, mental and developmental needs are being met by each parent while analyzing this factor.

There are many more factors in determining the best interests of the child. Sometimes a parent will focus on one issue that they feel outweighs everything else; however, the court will review all of the factors before balancing it out to make a final determination. I will be addressing these other factors in coming posts.

My ex doesn’t exercise visitation. Can I charge him extra?

More and more frequently, I have been hearing complaints from custodial parents that the non-custodial parent isn’t exercising visitation as agreed upon or ordered. Recently, I have had calls to ask me about show causing the other parent because of failure to exercise visitation.

Years ago it didn’t seem to create the same issues that it creates today. First, the children are often very young and require more supervision. Second, custodial parents often work shift work or have second jobs to make ends meet in today’s economy and visitation was planned around that need or the second job was planned around the ability to work on planned visitation days.

So what happens when the parent doesn’t show up? Well, sometimes the custodial parent has a fall-back person with whom they can leave the child. Other times they have to call in to work to cancel. And yet other times, they have to pay for a last minute babysitter.

The point is, there is often a financial burden that is created due to the failure of the non-custodial parent to exercise the visitation as ordered. In such a case, it may be possible to go back to court to ask for modification of visitation AND support. The support modification would be based upon an increase in child care fees due to the custodial parent’s increase in costs.

Before going down that road, make sure to meet with an attorney that can evaluate all of the circumstances to make sure it is in your best interests and the child’s best interests to request the modifications.

My ex doesn’t pay child support, can I deny visitation?

No!  Child support and visitation are two distinct legal situations.  My answer to the custodial parent is that they need to file for enforcement of the child support payment, but they cannot deny visitation. My answer to the non-custodial parent is that they need to file against the custodial parent to enforce the visitation and should try to get caught up on arrearages and file for a change in support if it is warranted.

These situations are typically caused because of anger between the parents based upon the breakup of the relationship, lack of support, or one parent simply wanting to cut ties with the past. What the parents fail to recognize is that the issues of custody, visitation, and child support are for the *child*, not the other parent.

Oftentimes, a paying parent says, “But he/she doesn’t use my money for the child!” However, keeping a roof over the child’s head, feeding the child every day, and providing for basic needs *is* something that occurs on a daily basis. The dollars that go into the bucket for child support mix in with the dollars the custodial parent uses to pay bills. The non-custodial parent may not like it because they can’t see how the dollars are spent, but the simple fact is that it takes money to raise a child. And the Court will not consider an occasional purchase of diapers to constitute child support.

In any situation, I review the current child support and visitation agreement or order with the parent and discuss whether or not there has been a change in circumstances that might warrant a change in the agreement or order. Some of these changes may include a loss of job, a child born into a new relationship, a change in residence, or a change in employer and benefits.

Don’t let the other parent dictate how and when you will see your child. It must either be something agreeable to both parties or something ordered by the court.

In child visitation cases, do grandparents get their own visitation?

It is highly unusual for grandparents to be granted visitation apart from the parents.  Typically, visitation with a parent also encompasses visitation with that parent’s extended family.  There are exceptions to this in extreme cases, such as when a parent is deceased and the other parent denies visitation with the deceased parent’s family.  There may be other situations that a Court will deem to be reason to grant visitation.  However, the grandparents must bring suit on their own behalf since a legal right to visitation is not inferred from a visitation agreement or order between the parents of the child.

For instance, suppose a mother has been granted sole legal and physical custody of a child. The father is granted supervised visitation at his home, where the paternal grandparents are the supervisors of the visitation.  The mother provides the transportation to and from the home even though it is not ordered. Then the father leaves the area for an extended period and the mother discovers he is absent from visitation.  The mother no longer wants to continue to bring the child to the grandparents’ home on the same schedule since the father is not there.  

Though it might be nice for her to continue the visits, and it shows her desire to maintain the relationship between the child and the extended family members, she is under no obligation to continue the schedule since the father is not exercising visitation awarded to him. That said, if the mother continues to abide by the schedule, and the father cannot be found, the mother is establishing a pattern of visitation with the grandparents that the court may take into consideration if the mother abruptly stops the visits.

In cases where a parent is not “in the picture,” it is often a good idea for the custodial parent to ask the court to amend visitation based upon the absentee parent’s failure to exercise visitation. The grandparents can also ask for some visitation to be established if they are denied access to the grandchild and the parent cannot be found.  

As always, each case has its own set of facts and circumstances that will impact a court decision and this should only be taken as a basic guideline for grandparent visitation. If you have questions about your specific situation, you should speak with an attorney in your locality to discuss the options – whether you are a parent or a grandparent.   

“Why should I have an attorney review the separation agreement?”

I hear this question frequently. Many people think, “We’re getting an uncontested divorce and we’ve decided on everything. Why pay a second attorney to review all the paperwork too? We agree on everything!”

What many people don’t realize is that the attorney drafting the separation agreement and divorce documents is representing one person and one person only, the person that hired them.  Ethically, that attorney cannot represent you as well. You will be bound to the terms you agreed upon and will have no recourse against that attorney if something was drafted incorrectly. In addition, small nuances can seriously impact your rights. An attorney is going to represent his client to the best of his or her ability, not you.

For instance, suppose your wife has primary custody of the children and you agree that you will continue to make payments on her primary vehicle in lieu of child support. When you look at the agreement, it states that child support is waived. Later on it states that you will make the car payments.

Fast forward: Your now ex-wife applies for state aid and they, in turn, come to you for child support. You say, “But I’m paying the car note which is supposed to be in trade for the child support!” You pull out the separation agreement to show the court and that’s not what it says at all. If your ex-wife does not agree with the intent, the judge won’t know why child support was waived or why you were making the car payments and will likely construe it as a balancing out of the equities of the marital property. Something that appears to you to define your intent doesn’t define it at all, and could severely impact you in the future. Not only will you still be responsible for the car payment, but you will have child support tacked on top of it with arrearages going back to the date of filing.

A family law attorney can sit with you for an hour or so and review your history and the agreement or divorce pleadings and let you know what issues there are that you may not have noticed. Isn’t it worth a couple hundred dollars to prevent issues that could impact you the rest of your life and could potentially cost you far more down the road? 

texting and driving

Currently, it is a secondary offense to text while driving in the state of Virginia. That means that police officers cannot pull someone over just because they are texting. If the individual is committing another offense, the officer can pull them over and then give them a ticket for texting as well. The fines for texting are $20 for the first offense and $50 for subsequent offenses.

However, it appears that law is about to change and to change significantly. It appears that a law mandating fines of $250 for a first offense and $500 for subsequent offenses will be enacted. More importantly, the law will make texting a primary offense. In other words, police will be able to pull you over if they suspect you are texting without having any other reason for the stop. In addition, texting may be an aggravating circumstance to reckless driving.

What are your thoughts about texting while driving? Are you in favor of the anticipated changes?