Posts Tagged ‘Best Interest’

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.

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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.

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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.

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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.

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