Child Custody Laws

CHILD CUSTODY LAWYERS - VIRGINIA, NEW YORK, NORTH CAROLINA, MARYLAND & MASSACHUSETTS

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One of the first questions in a divorce in Virginia, New York, Maryland or Massachusetts is who will get custody of the child or children?

Child custody in Virginia, New York, North Carolina, Maryland & Massachusetts is a legal term used to qualify the relationship the child or children has between the parents. A determination of child custody in Virginia, New York, North Carolina, Maryland & Massachusetts will resolve issues such as which parent will the child or children spend the majority of time with or will the parents equally share their time with the child or children. Also, a determination of child custody in Virginia, New York, Maryland, or Massachusetts may have an impact on child support payments and a determination of who are the payer and the payee.

If you are in need of a child custody lawyer in Virginia, child custody attorney in Maryland, child custody lawyer in New York, child custody attorney in North Carolina or child custody lawyer in Massachusetts, then turn to the child custody attorneys of SRIS, P.C. for help. We have offices in Virginia, Maryland, New York, North Carolina, & Massachusetts to better serve you.

The following is a general overview of some of the issues that a parent may face in regards to child custody.

The courts in Virginia, Maryland, New York, North Carolina, & Massachusetts will frequently use the term "best interests of the child" in making a determination as to child custody. Although the courts in Virginia, Maryland, North Carolina, New York or Massachusetts will generally consider all the factors in a child custody determination, some factors will be given more weight than others.

Our child custody attorneys in Virginia, New York, North Carolina, Maryland & Massachusetts have found that most parents are able to decide by themselves what the child custody and visitation arrangements are going to be for the child or children without a judge deciding the issue of child custody. However, some parents are not reasonable and unable to cooperate and come to an agreement as to the custody of the child or children. When parents engage in child custody litigation, the relationship between the parents can become very hostile. The mentality some parents take is that of a win at all costs. Some of the allegations that are made in court filings are that of sexual, physical, emotional abuse, alienation of affection by the other parent, etc. The Virginia, Maryland, New York, North Carolina, & Massachusetts child custody attorneys of SRIS, P.C. will always counsel their clients to take the "high road" in a custody battle. The reason we counsel our clients to take the high road approach in a child custody battle is for two reasons: 1) the truth ultimately comes out and judges who have been hearing child custody cases in Virginia, New York, North Carolina, Maryland & Massachusetts are not pleased when parents make false allegations; 2) although it is very important that you do not allow false allegations to go unchallenged, child custody battles can be very expensive. If both parties engage in making speculative allegations in a child custody case, this will only drive up the cost of litigation.

When child custody disputes arise, it is not uncommon for one of the parents to attempt to engage in forum shopping in an endeavor to gain an unfair edge against the other party. Forum shopping is basically looking for a state or country that may have more favorable laws towards one of the parents in regards to child custody. Many countries have become a part of the Hague Convention to prevent forum shopping between countries. Additionally, in the United States, an act called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was enacted and adopted by every state to prevent forum shopping in child custody cases. The essence of this act is to require all the states to defer to the jurisdiction of the home state of the child or children. The Massachusetts, New York, North Carolina, Maryland & Virginia child custody attorneys of SRIS, P.C. have successfully represented many clients who have to deal with the other parent attempting to engage in forum shopping. It is very important to hire the services of an excellent custody lawyer when faced with an issue of forum shopping. The statutory designation of "home state" lasts only for a certain period of time.

The Massachusetts, New York, North Carolina, Maryland & Virginia child custody attorneys of the SRIS Law Group do truly care about you and your children and we look forward to helping you.

Please feel free to call us at 888-437-7747, email us or contact us via our on line form.

Our Massachusetts, New York, North Carolina, Maryland & Virginia child custody attorneys and staff speak the following languages in addition to English: Tamil, Hindi, Telugu, Arabic, Spanish, Cantonese, Mandarin, Malaysian & French.

Our child custody attorneys are licensed to handle child custody cases in Virginia, child custody cases in New York, child custody cases in North Carolina, child custody in Maryland, child custody cases in DC & child custody cases in Massachusetts; however our child custody lawyers handle child custody matters only in Virginia, New York, North Carolina, Maryland & Massachusetts.

The following are some of the most frequently asked questions by our child custody clients in Virginia, Maryland, New York, Massachusetts & North Carolina:

When Parents Divorce: Child Custody Law and Visitation Rights

It's one of the sadder parts of any divorce - determining child custody and visitation. In deciding which parent (or both) gets custody, the court takes into account a multitude of factors.

In almost all courts in every state, the standard is: "The child's best interests." In deciding child custody issues - this one aspect is given the highest priority.

But what exactly determines this "best interests of the child" criteria?  (top)

Here's a checklist of the most commonly used factors:

  • The child's age, sex, and mental and physical health
  • The parent's mental and physical health
  • The parent's lifestyle and other social factors, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
  • The emotional bond between parent and child, as well as the parent's ability to give the child guidance
  • The parent's ability to provide the child with food, shelter, clothing, and medical care
  • The child's established living pattern (school, home, community, religious institution)
  • The quality of the child's education
  • The impact of changing the status quo in the child's daily routine, and
  • The child's preference, if the child is above a certain age (usually about 12).

In many cases, there are no clear cut answers in determining which parent clearly "outranks" another in fulfilling these custodial factors. Each may be equally (or nearly) qualified in providing for the child's welfare and well being.

In divorce and child custody law cases like these, the courts focus on which parent will provide the child with the more stable environment, including maintaining a healthy relationship with the other parent. When a child is young, special attention is given to the parent who has been the child's primary caregiver. However, with older children, the parent who is best able to provide continuity in education, neighborhood life, religious institutions, and peer relationships may be awarded primary custody.

Also, the judge in child custody cases will place great weight upon the fact if the children will be remaining in the home where they were raised and lived as a family, if they will be continuing in the same school, participate in their usual activities and generally enjoy their regular routines. A judge will be adverse to changing these normal physical locations, conditions and schedules.

Another factor that comes into play with child custody cases is when one parent moves out of the house, leaving the child or children with the remaining spouse. This can adversely affect the chances of the distant parent gaining custody - even if they left in order to avoid highly unpleasant or even dangerous situations.

If the situation is so volatile, then seriously consider taking the children with you. If you don't, the court may properly assume you considered the options and believed the remaining spouse was a competent caregiver - regardless of the situation between the two parents. If you do leave with the children, file as quickly as possible in family court for temporary child custody and child support. Speed is of the essence, because if you don't act first, the other spouse may go to court first and allege that the kids were taken without that spouses knowledge.

Family law judges don't look very highly on a parent who removes the children from the home without seeking legal recognition. A judge may order the children be returned to the family home, pending future proceedings to determine physical custody.

Do Mother's Have More "Clout" When It Comes To Retaining Custody?  (top)

In the past, it was customary for the courts to award custody of young children (about 5 years old or younger) to the mother when couples divorced. This "tender years" doctrine has been almost entirely replaced - either rejected outright or relegated to the role of tie-breaker if two otherwise fit parents request custody of their pre-school children

Every state now takes into consideration the fitness of both parents - the mother no longer automatically enjoys a de-facto privilege when custody is being determined. Most states require their courts determine custody on the basis of what's in the children's best interests, without regard to the parent's gender.

Many divorcing parents do agree the mother will have custody after a separation or divorce, with the father exercising reasonable visitation rights. If this happens because both parents agree the mother has more time, a greater inclination in parenting, or a better understanding of the children's daily needs - then all is well and good. But many times the father presumes the mother will automatically be awarded custody and never pursues the matter - or because the mother is more tenacious in seeking custody.
As a father, if you want to ask the court for physical custody, don't let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may both be on equal footing. In fact, if you have more flexible hours than the mother, you could be at an advantage. In any event, the judge will look at what's best for the children in custody cases.
So if you as father think you are the better caregiver and should have primary custody - it's up to you to convince the judge that it's in the kids' best interests to stay with you. If you present yourself as a willing and able parent, it will go a long way towards challenging any lingering prejudice against you as a father.

Joint Custody   (top)

"Joint custody" pursuant to child custody law is when the court awards partial custody to both parents. Child custody law recognizes one of three forms when addressing joint custody:

  • joint physical custody (children spend a substantial amount of time with each parent)
  • joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
  • both joint legal and joint physical custody.

Child Custody Laws and Visitation rights for Gay and Lesbian Parents (top)

Society is changing. Just a short time ago, it would have been inconceivable for an openly gay or lesbian parent to be awarded custody - or even substantial visitation rights. That's drastically changing.

In several states, including Massachusetts, Maryland & Virginia, the child custody law states a parent's sexual orientation cannot in and of itself prevent that parent from being given custody of or visitation with his or her child.

But what the child custody law states and what happens are sometimes two different things. Lesbian and homosexual male parents may be denied custody or visitation - even if the child custody law expressly forbids any such discrimination.

Judges are human beings, and when considering the best interests of the child, they may be motivated by their own personal outlook or community prejudices. While they may not openly say they are denying custody or visitation because of the parents sexual preferences, they find other reasons to deny them custody or appropriate visitation.

If you are involved in a child custody case and are concerned about any possible bias against you because you are gay or lesbian, make sure you consult a child custody lawyer about protecting your rights.

Visitation: Who Determines What's Reasonable and Fair in Child Custody Law Cases?   (top)

When one parent is awarded physical custody, and the other is granted "visitation at reasonable times and places," the parent with physical custody is generally in the driver's seat regarding what is "reasonable and fair" visitation.

When a court determines the visitation rights of a non-custodial parent, it usually leaves it to the parents to work out a precise schedule of time and place. This allows the divorcing couple to exercise flexibility by taking into consideration both the parents' and the children's schedules

If both parents cooperate and make sure the children spend a significant amount of time with each parent, this needn't cause undo problems or hardships.

But… many times this isn't the case. Due to animosity, hurt feelings, the wish to "get back" at the spouse, or just plain mean spirited revenge - all too often "visitation at reasonable times and places" translates into far too little time for the non-custodial parent. Bitter disputes then occur, only increasing the animosity between the divorced or divorcing couple.

The parent with the actual physical custody has more control over the dates, times, and duration of visits. He or she isn't legally obligated to agree to any particular schedule, but judges do take note of who is being reasonable - and who is merely being vindictive. If you are uncooperative merely to "vex your ex," it can well backfire when you need to ask the court for something concerning your divorce, support or custody issues at a future date.

Parenting Agreements   (top)

To avoid such problems, many courts now prefer the parties work out a fairly detailed parenting plan known as a "parenting agreement," setting down the visitation schedule in writing, as well as outlining who has primary responsibility for decisions affecting the children.

If you suspect right off the bat that "reasonable visitation" just isn't going to work with your spouse, insist on a fixed schedule beforehand. This will save you time, aggravation, and possibly money.

If after a period of time your pre-determined "reasonable visitation" just isn't working out -- one parent is consistently late, skips scheduled visits, or doesn't inform the other parent where he or she is planning on taking the children -- you can go back to court and petition the judge to change the arrangement to something more equitable

Physically Abusive Spouses - Keeping the Children Safe (top)

When a non-custodial parent has a history of violent or destructive behavior, especially toward the child or children, the court often requires visitations between the abusive parent and the children be supervised. An adult other than the than the custodial parent must be present at all times during the visit. The adult may be known or unknown to the child, and may be someone agreed on by the parents. But no matter how the adult is chosen, he or she must be approved by the court that ordered the supervised visitation.

Grandparents Rights    (top)

Parents aren't the only people whose rights must be considered when it comes to custody and visitation. Grandparents' rights often play a significant role in the child's history - and severing all ties with the grandparents is usually not in anyone's best interests.

The courts have recognized this, and now all 50 states currently have some type of "grandparent rights" statute pertaining to child custody & visitation. Grandparents and sometimes others (foster parents and stepparents, for example) can ask a court to grant them the legal right to maintain their relationships with their grandchildren or former charges.

Child custody laws vary greatly from state to state, when it comes to the crucial details, such as who can visit and under what circumstances.

Approximately twenty states have "restrictive" visitation statutes, extending the visitation rights to just the grandparents and not any other extended family members -- and only if the child's parents are divorcing or if one or both parents have died.

States with more permissive visitation laws allow courts to consider a visitation request even without the death of a parent or the dissolution of the family, so long as visitation would serve the best interests of the child.

But please be aware, the courts do give great deference to a parent's decision to limit a grandparent's rights in terms of custody & visitation. It's best to be fair. After all, it usually wasn't the grandparent's fault you and your spouse couldn't make the marriage work. Your children shouldn't have to be burdened with the loss of their grandparents along with all the other traumas of divorce.

Limiting Visitation  (top)

If you do decide to alienate the grandparents from the children, the grandparents may take you to court to try and force visitation. If there's a reason why your child shouldn't visit with a grandparent, by all means raise the issue in court. But make sure the reason is one affecting your child's life and not your own needs, pride, or anger.

If there's no valid reason why a court would protect the children from the grandparents, (such as previous abuse, history of drug or alcohol problems, or unsavory lifestyles) it's likely the grandparents will receive some form of visitation. This is especially true if a prior healthy relationship existed between the grandparents and your children. So if you have to appear in court, it's best to arrive with a proposed visitation schedule in hand. It's better to have your own wishes enforced than have a judge call the shots and set the schedule.

So what's reasonable? Offering between one and three afternoons a month, for a few hours at a time is usually sufficient. This could be for lunch and a movie or a play session at the local park. If you and your child don't know the grandparents very well, you can ask the court to allow visitation to occur in your presence. If the grandparents live in another state, visitation over an entire weekend may be considered. However, if the bond between the children and their grandparents is exceptionally strong and healthy - there is no reason to be stingy regarding extra visitation times or dates.

Enforcing Visitation - Grandparents Have a Tougher Time  (top)

If you're the grandparent, and the custodial parent is balking at allowing you visitations with your grandchildren, you have a tougher road to travel.

You might first want to try a mediation session with the children's parents before trying to enforce a legal visitation agreement.. In fact, in some states the courts won't consider your petition for visitation until the parties have attended mediation together. Mediation means that you hire a neutral third party to help all of you create a legally binding agreement that everyone can respect and live with. If mediation doesn't work and you end up in court petitioning for visitation rights, be prepared to testify under oath about your relationship with your grandchildren, your relationship with the parents, any custody or visitation arrangements you had before the court action, and the last time you saw your grandchildren. Also be prepared to discuss your personal history, including any medical troubles or problems with the law.

Remember - you're under scrutiny here. The court is deciding whether you should spend time with your grandchild -- and the judge won't hesitate to pry into your personal matters.

If you're a chain smoker, you may be asked to refrain from smoking in the child's presence. If you don't, the parent may ask the court to discontinue your visitation. If you cannot, for health reasons, perform some tasks independently or correctly, your visitation may be supervised.

This doesn't mean the court is prejudiced against you. You face standards similar to those faced by a non-custodial parent seeking visitation: The children's welfare is always given the highest priority. But as we said, the courts will give great deference to a parent's decision to limit visitation.

If reasonable visitation schedules or accommodations just can't be made - you may well want to consider the help of an experienced attorney.

Family court can be a difficult maze to navigate, and a skilled and knowledgeable lawyer can make sure all your rights are fully and adequately protected.

The (VA) Virginia divorce, criminal, custody & dui attorneys of SRIS, P.C. represent clients throughout Virginia including but not limited to:

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