Child Custody Archives - Page 2 of 2

The Facebook Frenzy in Virginia Family Law Cases

January 20, 2014 By Marc Leave a Comment

Father with daughter and beer — Courtesy of Mooganic via flickr.com

Take a look around our social media-driven world and you will struggle to find someone who is not active on Facebook, Twitter, or Instagram. Our newfound desire to publish snippets of our personal lives to a massive audience is astounding. And while it is nice to be able to keep in touch with friends and family, these outlets can be dangerous as they tend to create powerful evidence in Virginia family law and divorce cases.

In around fifty percent of our contested divorce and child custody cases over the past few years, there is at least one piece of evidence that comes from a social media account—Facebook, primarily. The most common are photographs of a parent consuming alcohol, or comments that admit important facts or display cruel and abusive behavior.

While we strongly encourage you to close any social media profiles, most disobey that advice.

Lesson 1: Watch What You Post

If you insist on being an active member of the social media world, despite being in the middle of a contested divorce or child custody dispute, think twice before you post something on the internet. For example, if you are separated from your spouse but are still married, think twice before posting pictures of you and your new boyfriend/girlfriend. If you are in the middle of a custody dispute, think twice before bad-mouthing the other parent. While you may not expect the other person to notice, in our experience they usually will. And then they will share the information with their attorney who will aim to use it against you in Court.

Lesson 2: Watch What Others Post

Remember all those pictures, updates and comments that you have been tagged in by others? Well, you know who might be able to see these and, if they happen to be incriminating, you may be in trouble.

With this in mind, you may want to peruse these photos and comments that have been posted by others. If there happen to be any which might be unsuitable for certain eyes, un-tag yourself and kindly ask the person who posted the photo to remove it.

Lesson 3: Limit Access to Your Profile

If you haven’t already, be sure to check your account settings. If you can limit your profile so that only your “friends” can see you activity you might be able to prevent the opposing party from stalking you online persona. While this won’t necessarily bar access to someone who really wants to see what you are up to, it will hopefully serve as a good deterrent.

In conclusion, be careful when you are using social media accounts. While these accounts have certainly become an integral part of the social lives of many in Richmond and the rest of Central Virginia, you must all remain mindful of the impact they may have on your divorce or family law case.

The Virginia family law and divorce attorneys at BoykoNapier are available to answer questions about the impact of social media in your case. If you have a contested family law or divorce case in Virginia, call us today at (804) 658-3418. We handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding communities. You may also contact us via email.

The Role of a Guardian Ad Litem in Virginia Child Custody and Visitation Cases

January 3, 2014 By Marc Leave a Comment

two children — Courtesy of Kheel Center, Cornell University via flickr.com

If you are involved in contested child custody or visitation case in Virginia, chances are there will be a guardian ad litem appointed to represent your child. Therefore, it is important that you familiarize yourself with the role of the guardian.

What is a Guardian Ad Litem?

Guardians are Virginia attorneys who are appointed by the Court in certain cases to represent minors or other incapacitated individuals. In Virginia, guardians are frequently appointed to represent children who are the subject of a custody or visitation dispute. When appointed, a guardian’s job is to represent their client—the child—and to advocate for their client’s best interests. Thorough guardians conduct a time-consuming investigation prior to trial, which would normally include interviewing the parents, extended family-members, relevant third parties (i.e. counselors, psychologists, daycare providers, teachers) and other witnesses. It should also include “home visits” (observations of the homes of the parents or third-parties who are competing for custody/visitation) and reviewing important records (medical records, report cards, disciplinary records, etc.).

A guardian ad litem will also participate in the trial. They may introduce evidence, question witnesses, and make a recommendation to the Judge as to what custody and visitation arrangement they believe is in the child’s best interest.

**Will a Guardian Ad Litem be appointed in my case?**

The short answer: Maybe.

The long answer: It depends on the circumstances and on the city/county where your case is pending. In our experience, some Judges tend to appoint a guardian ad litem in every contested case, regardless of the circumstances and regardless of whether both parents have hired their own attorneys. Other Judges will require at least one of the parties to specifically request a guardian, and even then may be hesitant to appoint one without seeing a good reason for doing so. (Note: Virginia Code Section 16.1-266 (F) limits the Court’s ability to appoint guardians in cases where both parents have retained a lawyer.)

**Should I request a Guardian Ad Litem in my case?**

Good question. It is a good question because a guardian can have a very influential role in your child custody or visitation case. Judges tend to give a guardian’s opinion a great amount of weight. This is likely due to their ability to meet the parties outside of Court, to see their home environment, and, most importantly, to talk to the children in a comfortable environment.

For these reasons, among others, it is important that you speak with an experienced family law attorney about whether or not you want a guardian appointed to represent your child.

**What should I do if a Guardian Ad Litem is appointed in my case?**

It is important to develop a good relationship with a guardian, given the fact that they serve an important and influential role in the case. So, be responsive; return their calls, be cooperative and polite. Remember that they are representing your child, not the other parent. It is also wise to strongly consider hiring an experienced family law attorney if you have not already done so. An attorney can help guide you through the litigation process, which includes interacting with the guardian and assisting them with their investigation.

If you have any questions about the guardian ad litem’s role in your case, contact an experienced Virginia family law attorney at BoykoNapier. Our attorneys handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. Call BoykoNapier today at (804) 658-3418, or contact us via email.

Grandparent’s Rights in Virginia Child Custody and Visitation Cases

December 5, 2013 By Marc Leave a Comment

grandparents and grandchild — Courtesy of surlygirl via flickr.com

It is a well known fact that grandparents are often actively and intimately involved in the lives of their grandchildren. Their roles often increase when the parents of their grandchildren are separated. Grandparents may transform into the daycare providers, character witnesses, visitation supervisors, and the list goes on.

In light of their involvement, grandparents are often concerned about the welfare of their grandchildren and ask us about their legal rights pertaining to custody and visitation. Because of the interest surrounding this topic, we felt it would be appropriate to post some general information. This post is not intended to offer legal advice. Every circumstance is unique and you should speak with an experienced family law attorney for specific advice.

Grandparents Can File Petitions for Custody and Visitation in Virginia

Virginia Code Section 16.1-241 gives Virginia Juvenile and Domestic Relations Courts jurisdiction to handle child custody and visitation matters. While the legislature has not yet set forth a statute dedicated to grandparent’s custody and visitation rights, petitions for child custody and visitation can be filed by any person with a “legitimate interest”—this phrase generally includes grandparents, stepparents, other blood relatives, among others. However, in our experience, most grandparents and other third parties are often unaware of the difficult legal hurdles they must leap in order to actually prevail on a child custody or visitation petition.

Biological Parents are Presumed to be the Best Custodians

Although grandparents and third-parties are able to file petitions for custody or visitation, the law affords the biological parents a tremendous amount of protection. The law generally presumes that the biological parents of a child are the best custodians and the best decision-makers regarding who the child should visit with.

Burden of Proof is on Grandparents

This parental presumption can be overcome in certain circumstances with compelling evidence. The grandparents will bear the heavy burden of proof and must meet that burden to succeed.

It is important to note that the burden of proof may differ depending on the type of case and the circumstances. The burden in custody cases is different from that in visitation cases. There are also often different burdens in cases when only one biological parent objects to the grandparents petition, as opposed to cases when both parents object.

In sum, grandparents and third parties are often permitted to pursue child custody and visitation in Virginia Juvenile Courts. However, if you are involved in such a case, it is important to speak with a skilled family law attorney.

The Virginia family law attorneys at BoykoNapier have experience handling grandparent and third party custody and visitation cases. We handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield and Hanover counties. If you have questions regarding child custody and visitation, or any other family law issues, contact BoykoNapier today at (804) 658-3418, or via email.

Child Custody and Visitation – Best Interest Factors

September 6, 2013 By Marc Leave a Comment

Parents and Child — Courtesy of Bill Selak via flickr.com

If you are a parent who is going through a child custody and/or visitation dispute in Virginia, it would be wise to review the statutory factors that the Judge must consider in making his or her decision. Commonly referred to as the “Best Interest Factors”, Virginia Code Section 20-124.3 is designed to help Judges make a decision that is in the best interest of the minor child who is the subject of the litigation.

The Best Interest Factors are fairly self-explanatory and most come as no surprise—relationship between parent and child, physical and mental condition of the parties, history of family abuse, etc. However, it is helpful to review the factors carefully and present evidence on each factor so that the Judge is fully aware of how that factor applies to you as a parent.

Which custody and visitation factors are the most important?

We get asked this question a lot and the simple answer is: ALL OF THEM. The Virginia Code does not present these factors with any sort of hierarchy. However, there are some factors that tend to play a larger role in certain cases.

Family Abuse Cases (factor 9):

Obviously, in cases where there is a history of family abuse, the Judge is likely to pay close attention to the details surrounding the abuse. Abuse that is proven can often make a tremendous impact on the outcome of the custody/visitation issue.

Serious Physical and/or Mental Illness (factors 1 and 2):

In cases involving a parent or child with a serious physical/mental illness, the circumstances surrounding the illness will often weigh heavily on a Judge for a variety of reasons—i.e. a child with a severe illness needs more attention than an average child; a parent with a severe illness may be unable to adequately care for their child.

Parenting Role (factor 5):

“The role that each parent has played and will play in the future, in the upbringing and care of the child”.
Courts tend to award a lot of credit to the parent who has served as the primary care provider and primary custodian for the child. We believe this is because it is that parent who usually has the strongest grasp of the child’s needs (which intertwines with factor 4). Further, the ability of the parents to serve the child’s needs in the future is particularly important.

Co-Parenting Ability (factor 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”.
As you can imagine, it is very common for the Court to hear evidence that one parent has unreasonably denied the other with access to and visitation with the child. In fact, this is one of the most common reasons that parents end up in custody and visitation disputes—an inability to agree on how they should share the time with their child. Courts tend to favor parents who can demonstrate an ability to communicate effectively with the other parent and, more importantly, foster that parent’s relationship with the child.

To sum things up, it is extremely important for you to review all of the statutory factors and consider how they will apply in your case. A skilled family law attorney will be of great assistance in this regard.

If you are in need of a n experienced and passionate Virginia custody and visitation attorney, call an attorney at BoykoNapier, PLLC at (804) 658-3418, or contact us via email.

Difficulties in Divorce: What is a Pendente Lite Hearing?

July 11, 2013 By Marc Leave a Comment

Country Home — Courtesy of pvdEric via flickr.com

Individuals going through divorce in Virginia will often ask themselves thousands of questions as they tread down the path of separation. One common concern that arises is, broadly speaking, TIME. Most people tense up when they hear how long it can take for a divorce to be finalized—once separation begins, a year or more is the norm.

“What do I do until then?” is an incredibly daunting thought. The “what-ifs” are bound to circle around in your head: what if my husband doesn’t provide any support; what if my wife keeps coming around my residence, or removes me from the health insurance policy . . . and so on.

Temporary Orders in Virginia Divorce Cases

While your circumstances will dictate what your best options are during a separation period (and because of that, it is important to speak with an attorney directly to determine your best course of action), it is helpful to know that you might be entitled to receive temporary relief from the Court.

Once a Divorce has been filed, you may ask for a hearing with the Court to enter a temporary order. This hearing is called a Pendente Lite hearing. This latin phrase means “pending the litigation” (per legaldictionary.com).

Thankfully, our Virginia legislature has kindly recognized that temporary relief is important. In Virginia Code Section 20-103, the legislature has given Judges the authority to make various rulings while the case is pending.

Common Pendente Lite Requests:

Temporary child and spousal support
Temporary custody of your minor children
Temporary use and possession of the marital residence
Order prohibiting the dissipation of marital assets
Order requiring a spouse to pay joint debts
Order requiring a spouse to provide health insurance coverage
Temporary award of attorney’s fees

The Court may also punish a party for contempt if they choose to disobey a Court Order while the case is pending. The purpose of this code section, and of the Pendente Lite hearing, is to provide a party with protection during what can often be a very lengthy divorce process.

If you have additional questions about Divorce, or Pendente Lite hearings, call BoykoNapier at (804) 658-3418, or contact us via email, and speak with an experienced Virginia Family Law Attorney today.

The Virginia Code – Find What You Need Online

April 30, 2013 By Marc Leave a Comment

In today’s technological world, it comes as no surprise that almost everything is online. So, it should not surprise you to learn that the entire Virginia Code, in all its glory, is online with a user-friendly, searchable database.

What is the Virginia Code?

The Virginia Code is, simply put, the laws in Virginia. The Code is the collection of statutes that the legislature has created and amended over time. These written statutes (a.k.a. “code sections”) are laws that govern our society.

If you have ever been in criminal or traffic court, you have probably heard the Judge or the clerk announce to a defendant, “You have been charged with violating Section 18.2-xxxx of the Code”. That is a reference to one statute. But there are thousands, governing everything including crime, contract, divorce, custody, probate, licensing, insurance, adoption, etc.

Why You Might Want to Look at the Virginia Code?

If you are involved in a Legal Action

Criminal or Traffic Charge – if you have been charged with a criminal or traffic offense in Virginia, you should receive a summons, warrant or indictment. On any of these documents is a code section (sometimes more than one). For example, if you have been charged with assault and battery, you should see Virginia Code Section 18.2-57. The section will describe the behavior that is prohibited and will usually specify the degree of the charge and, in some cases, the punishment range.
Civil Case – if you are involved in a civil action, the Judge may turn to the Code to find the legal standard that applies to your case. For example, in a child custody case the Court is obligated to consider certain “statutory factors” set forth in Virginia Code Section 20-124.3. The same is true for certain civil contract suits, among many other types of civil litigation.

If you are wondering whether you can bring a Legal Action

If you think you have a legal action against another, the Code may be of some assistance. Search for the issue you are having and you may find the answers you were looking for.
If you are wondering whether you should do something or not–I.E. whether a particular activity is prohibited. Reading the Virginia Code can often be any eye opening experience. There are so many things that you probably are not aware of—some of them are even criminal laws that you would not have thought existed.

How To Access the Virginia Code Online?

Visit the searchable database: Code of Virginia (http://leg1.state.va.us/000/src.htm).
Search via words and phrases (in the search term box)
- Just like you would in google (sort of). If you want to search for a couple of words/phrases, insert the word “and” inside.
- Be careful to use the exact word you want. If you want word variations, insert a “*” (i.e. “Custod*” for custodian or custody).
Search via Table of Contents
- This takes you to a list of the Titles. In this way, the statutes are nicely organized by topic. If you want Family Law, for example, it is listed next to its Title (Title 20: Domestic Relations).
- Once you are inside a particular title, you should see a list of Chapters. These are basically subtopics.
- Once you are inside a particular Chapter, you should see a list of every statute within the chapter.
Search via Popular Names
- A click on this will bring you to a list of popular legislative acts, including Uniform statutes (i.e. “Uniform Child Custody Jurisdiction and Enforcement Act”).
NOTES:
- If you are having trouble, use the search examples provided to help you reformat your search.
- READ THE ENTIRE SECTION. Don’t stop after the first paragraph. Sometimes, within a particular section, there are exceptions or additional rules that might impact your situation. So be sure to review everything–after all, if you’re spending time to look up a statute, odds are it is probably important!
- The online database will also let you review a portion of the statutes history, including amendments (click on the hyper-linked numbers at the bottom of the statute).

If you have questions about the Virginia Code, or about any legal issue you may be facing, call an experienced Virginia Trial Lawyer at BoykoNapier today at (804) 658-3418 or contact us via email. We represent clients throughout Central Virginia, including Richmond, Chesterfield, Henrico, Hanover and the surrounding localities.

Domestic Protective Orders in Virginia: Powerful and Prevalent

March 27, 2013 By Marc Leave a Comment

Scales of Justice — Courtesy of Citizensheep via flickr.com

In Virginia, you may be entitled to a domestic protective order if:

You have been subject to “family abuse” committed by another,
You continue to be in fear, and
A protective order is necessary to prevent further abuse.

A Juvenile Court Judge, in granting a protective order, is authorized to use various remedies in favor of the person requesting the protective order. These include prohibiting contact between the parties (and the children, in some instances), granting the requesting party possession of a residence commonly occupied by both parties, and granting an order of temporary child support (read the rest of the remedies at Va. Code 16.1-279.1). Further, some of the remedies can be implemented immediately upon the approved application for an emergency protective order.

I have strong views on the domestic protective order laws in Virginia. I cannot argue against the necessity of these orders—violence in the household must not be tolerated and protection must be afforded to those in need–and I have represented many individuals who were properly in need of a protective order. However, I can say that I believe too many people get away with using the protective order as a legal tool–often, as an advantage against an opposing party in a custody or divorce battle. And it’s easy to see the benefit of obtaining a protective order: if you are seeking a divorce, a protective order could force a separation by ordering that your spouse give you temporary possession of the marital residence (not to mention de facto temporary custody of your children, among other things).

How do I know people abuse the system? I don’t. I can’t imagine people would ever willfully admit to using it as a tool–in many cases that would be considered perjury. What I can say is that I have seen many protective order affidavits that, on their face, should not even warrant a hearing. I’ve had numerous people in my office about custody issues ask me: “What if I go get a protective order?” when they are certainly not in fear of their significant other. Perhaps even worse, I have been involved in dozens (and heard about dozens more) of negotiations at protective order hearings and far too often the result is: the protective order is voluntarily dropped by the requesting party, and a temporary order of some kind is agreed upon, usually involving custody, visitation, or support. I believe that if the applicant was truly in fear for their safety at the time they filed for a protective order, they would not be so willing to let it go.

How can the Court system protect against this potential for abuse of protective order?

The legislature should step in and require:

More Information on Affidavits
More restrictive burdens of proof
Limit the definition of family abuse
Allow respondents (i.e. defending parties) to appear at preliminary protective order hearings

After all, we should be more hesitant, as a society, before we authorize a Court to strip a person of two essential freedoms—family and property.

Call: 804-658-3418