Virginia Custody: Modification of Non-Parent Custody and Visitation

A non-parent seeking an initial award of custody to a child has to meet certain difficult standards to override the presumption that the child’s best interest will be served when in the custody of his or her parents, as stated in Bailes v. Sours, 231 Va. 96 (1986) and as reflected in Va. Code § 20-124.2(B).  If this presumption is overcome, the court must simply consider the best interests of the child in determining custody.  Id.   Continue reading

Virginia Divorce: Can I Use GPS to Track My Spouse? How About My Kid? How About Both?

Let’s say you want to prove that your spouse is having an affair.  But you don’t want to pay a registered private investigator to do the legwork.  And you don’t want to do all of the legwork on your own.  So you place an electronic tracking device on your spouse’s car to help do most of the work for you.  Can you do this in Virginia? Continue reading

Virginia Custody: The Perils of Trial Illustrated

I usually don’t think much about custody decisions by our Virginia Court of Appeals.  The appellants almost always lose.  They usually lose because trial courts rarely commit a legal error like failing to consider the relevant custody factors under Va. Code Sec. 20-124.3.  And they usually lose because the trial courts rarely abuse their discretion, which is a standard that our appellate courts have interpreted as “was the judge drunk?”  So I rarely understand why custody appellants waste their money on an almost surefire loss.  Yet, there’s a recent appellate custody decision that made me think “I get it.”  I get why the appellant couldn’t help but call out the trial court for its questionable decision despite knowing it’d be a sure loss. Continue reading

Virginia Custody: A Brief History Lesson on the Tender Years Doctrine (Part 2)

I wrote earlier today about the rise of the tender years doctrine, which our commonwealth’s highest court originally put as follows:

            “It is now generally recognized that the mother is the natural custodian of her child of tender years, and that if she is a fit and proper person, other things being equal, she should be given the custody in order that the child may receive the attention, care, supervision, and kindly advice, which arise from a mother’s love and devotion, for which no substitute has ever been found.  Human experience supports the policy that young children should not be deprived of the care of their mothers and of their love and tenderness, which may be counted upon most unfailingly. Experience also teaches that children grow up more normally when reared by young people rather than older people.

             Accordingly, it has been held that children of tender age, especially girls, will be awarded to their mothers, if fit and suitable; and that where no injury or disadvantage will result to the child, the feelings of the maternal parent must be given consideration.”  Mullen v. Mullen, 188 Va. 529 (Va. 1948)

Continue reading

Virginia Custody: A Brief History Lesson on the Tender Years Doctrine (Part 1)

It’s always fun to read old appellate court decisions.  These decisions often act as if their legal conclusions were obvious, and thus they often contain bold proclamations addressing a world that no longer exists (if it ever really existed in the first place).  These conclusions then get used as the basis of our law for years until someone realizes that the world has changed and therefore the law must change as well.  Mullen v. Mullen, 188 Va. 529 (Va. 1948), might be our court’s best example of this phenomena. Continue reading

Virginia Custody: A Poster Case for the Father’s Rights Movement

The father’s rights movement, at its most simplified, believes that the judicial deck is stacked in favor of mothers, whether it be in favoring them in initial custody decisions that leave the father very little time with the children or in applying an onerous child support formula that leaves the father with little funds to make his own ends meet.  The movement strongly relies upon anecdotal evidence of otherwise good fathers being treated like mere babysitters in the law’s eyes or being left almost destitute as every penny goes to the mother of a child who uses that money to fund her lifestyle rather than pay for the child’s actual needs. This blogger does not subscribe to this movement, but a recent case would surely give anyone sympathetic to the movement pause . . . Continue reading

Virginia Custody: The Perils of Relocation Illustrated

Say you are the primary physical custodian of your boys, who have lived their entire lives in their hometown and are now 11 and 14 years old.  Your kids are doing great.  Your kids have a great relationship with you.  Your kids have a great relationship with their father, whom you divorced about 5 years ago.  Your kids have a nice relationship with your current husband, whom you married soon after your divorce 5 years ago.  You have an okay relationship with your ex-husband, although you still have negative feelings towards him stemming from your past relationship.  Then, unexpectedly, your current husband’s employer removes his local position, forcing him to take a similar position out of state in Ohio.  Can you just move with the kids to Ohio?  What do you risk?  Well, unfortunately for you, you risk losing custody of your children. Continue reading