What do I do if my spouse or the other parent is late in bringing back the children from visitation?

It's snow day # (I've lost count) in Henrico County and it made me think of this issue that we often see.  Your agreement or court order may or  may not provide a time when an exchange of children is to occur.  If it provides a specific time, we often receive inquires related to the other parent being late.  These inquires range from what to do if the parent is 10-15 minutes late to what to do if the parent is 30 minutes late, and beyond.  I thought of this question today, on snow day # (I've lost count).  During times of bad weather, parents may not be able to return a child as scheduled.  Could this be considered a violation of a court order?  Maybe yes; and maybe no. Yes, parents should follow court orders.  However, Courts may consider the circumstances of the lateness or non-return, if they are unusual.  Is it habitual?  Is it intentional? Or is it related to an event that is outside the control of the other parent (snow, accident, etc.).  Use good judgment in how you respond as the parent expecting the child to be returned.  If driving in bad weather just to get a child back by a specific time may put your child in danger, remember that the best interest of the child is paramount.  If you are supposed to deliver the child to the other parent, and you cannot do so as scheduled due to bad weather for example, be respectful in communicating with the other parent and think about how to make accommodations for the lost time of the other parent where it is no one's fault. 

How do I stay organized as a single parent, co-parent, working parent, or any parent?

This is going to be a great program!

How Can I Get Custody of My Children?

Under Section 20-124.3, the Courts must consider certain factors in determining best interests of a child for purposes of determining custody or visitation arrangements:
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.

Factors 6 and 7 are more important than many people realize.  In separation and divorce situations, animosity is common.  Lack of trust, hurt feelings, resentment are also common.  These emotions between two adults can easily spill over into when those two adults must co-parent.  If these emotions are not controlled in the co-parenting context, the ability for those parents to do what is necessary under Factors 6 and 7 is jeopardized and the ability to obtain the custody that parent seeks also suffers. Some people can distinguish between adult issues and custody issues; some people benefit from co-parenting counseling to help navigate through having to work with a person who triggers the emotions above.  The other factors are important and will be considered as well; but where 6 and 7 require the ongoing relationship between two people who no longer want a relationship, it presents a bigger challenge that must be addressed.

When can my child say who he or she wants to live with?

In Virginia, the determination of physical custody is made by a Court after considering a number of factors that are set forth in Section 20-124.3 of the Virginia Code.  One factor is "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."  There are important components of this factor.  First, a child's preference is not the sole determining factor; it is one to be considered along with the other factors set forth in the Code.  Second, there is no specific age that governs when a child can express a preference; a 16 year old child who does not have the appropriate intelligence, understanding, maturity may not be able to express his or her preference and a 12 year old who is mature, intelligent and demonstrates understanding may be able to express a preference.  Third, in many cases, the child does not come to Court to talk to the judge.  Although there are provisions that allow for that mechanism, many times a Court will appoint a Guardian Ad Litem who is an attorney to represent the child and who presents the child's case to the Court through evidence as part of the custody determination.  Although parents may feel like their children should be able to have a say in where they live, the Courts must consider the best interest of the child based on all of the information, which may or may not include what the child wants and who the child wants to live with.

Can I date during my separation from my spouse?

We are approaching Valentine's Day and it reminds me of the question we are so often asked.  Can I date?  When can I date?  If you and your spouse have a signed agreement that resolves all of your monetary issues, your child custody issues, your property issues and support issues, then it may also state that you are free to live your lives separately from each other and you may be able to start dating.   You need to check those provisions closely and even consult with your attorney.

If, on the other hand, you have outstanding issues or if you are in litigation, dating is not advisable.  Virginia still recognizes post-separation adultery which can impact your support rights, your property rights and your custody objectives.  Even if a dating relationship has not become sexual and does not meet the criteria for post-separation adultery, it can still impact you in many ways including custody.  Therefore, until you have a final decree of divorce, you may want to wait before you start dating. It's the philosophy of better safe, than sorry.

What new laws in Virginia might affect me if I am separating or divorcing?

The General Assembly is heading toward its cross over, the time when bills from the Senate go to the House and vice versa.  This year in the family law arena there is some legislation that may impact families.  We are keeping our eye on these bills so that we can provide family law clients with updated services based on any new laws that may take effect.  If you are interested in following the General Assembly, check out http://virginiageneralassembly.gov

Can I claim the children for taxes if I'm separated or divorced?

**THIS IS A REPOST OF A BLOG IN DECEMBER 2014:
Here are some pointers that you may want to discuss with your lawyer and/or your accountant when separating from your spouse or getting a divorce.

1)    Your filing status is based on your marital status as of December 31.  Should you file your taxes based on  married filing single? Head of household? Filing jointly?  Is it beneficial to delay the entry of the divorce decree if you are close to the end of the year?
2)    In order to file as head of household if you are still married,  do you meet all of the requirements including length of separation?
3)    Who gets to claim the tax dependency exemption for a child if not specified in an Agreement or Order?   Do not assume that it is based on who pays the most in child support.  Be sure that you talk to your accountant/tax attorney about this and understand all of the nuances.
4)    Who gets the child care credit?  Again, do not assume that it is based on who pays the most in child support.  Do you have to be claiming the tax dependency exemption for this credit to apply?
5)  What tax issues can you and your spouse agree on and the tax people will honor?  Are there things that you are not allowed to make agreements on?  What forms might you have to complete to carry out agreements?
6)  How does filing status affect deductions or inclusions of spousal support payments?
7)  How should refunds or liabilities be apportioned?
These are just some of the questions that you should be considering as the year comes to an end and tax forms begin to appear in January.

Also, be sure to attend our free workshop on February 18, 2015 featuring a presentation by Cathy Stemple and Katherine Hoffmann from Biegler & Associates.  Contact smcfadden@hallandhallfamilylaw.com if you are interested.