Archive for the ‘Custody’ Category

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.

Tags: , , , , , , ,
Posted in Children, Custody, Family Law, Support | No Comments »

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.

Tags: , , , , , ,
Posted in Children, Custody, Family Law | No Comments »

Can I move my child to another state?

Sunday, October 2nd, 2011

I often get calls from people who want to move to another state and want to know if it’s ok to take their children.

Like most things in law, the answer is ‘it depends’.

In Virginia, if there is any sort of court ordered custody arrangement, you must notify the court and the other parent at least 30 days in advance of when you plan to move.  Why?  So the other parent has a chance to bring this up with the court before you and the child relocate.  Will the court stop you from moving?  It depends on the reasons for the relocation and the ties that the child has to family in his/her current location.  Of course the court can not stop YOU from moving, but they may order that the child not be allowed to move with you.

What if you take the child anyway?  Can the court order you to bring the child back?  The answer is ‘yes’, and if you take the child against the court’s orders this is called kidnapping and it is not something that you should take lightly.

Also, the court order means you need to notify the other parent and the court prior to any move, not just a move to another state.  You also need to notify the court and the other parent if you just move to another town, across town, or even just move next door.

What if you don’t have any sort of court ordered custody?  In that case, either ‘legal’ parent may move and take the child with them.  Which brings up the next question, who is a ‘legal’ parent?

Generally, if the woman is married at the time of birth, her husband is presumed to be the father of the child, and he will be the ‘legal’ father even if everyone knows he is not the biological father.  In order to have this changed, you must go to court to get  paternity established so that another man can become the ‘legal’ father.

In the case of adoption, the court can name a legal mother and/or a legal father who is not related to the child biologically.

If you are a legal parent of the child and there is no court order regarding the custody of that child, then the answer to the question about a move is ‘yes’, you can move your child to another state even if this means moving the child away from the other legal parent.

If you think this might be a problem for you, then you might want to consider getting a court order to establish a custody arrangement.

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.

Tags: , , , , , , , ,
Posted in Children, Custody, Family Law | No Comments »

Who gets custody of the children in Virginia?

Saturday, October 31st, 2009

The breakup of a marriage is a very emotional time….for the married couple and especially for the children.

No matter what custody decisions are made, things will never be the same. The children will no longer live in the same house with both the mom and the dad.

How does the court make a decision about where the kids will live?

It used to be that the kids always stayed in the house with Mom. It doesn’t work that way anymore. Today, the courts in Virginia make the decision based on what is in the ‘best interest of the child’.

I think that’s a good thing.

There is a list of things that the court will consider when it makes the decision listed in the Virginia Code in section 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. 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.

As you can see, this is a very broad list of things to consider. Also, with number 10, the court can look at anything that might have an impact on the decision.

Tags: , , ,
Posted in Custody, Family Law | No Comments »