Domestic Relations Archives - BoykoNapier, PLLC

Virginia Spousal Support: Reaching Retirement Age

May 15, 2018 By Marc Leave a Comment

Courtesy of Franck Michal via flickr.com
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On July 1, Virginia’s law regarding spousal support modification is going to change in a big way. The legislature has enacted an amendment to the existing law which will increase the potential for spousal support to be modified or terminated when a person reaches their full retirement age.

According to various sources, it appears that the divorce rate among older couples has been dramatically increasing in recent years–this has been referred to as the “gray divorce revolution”. This trend has presumably paved the way for legislative changes which take into account specific needs unique to older couples.

The law governing spousal support modification is set forth in Va. Code §20-109. For support obligations that are deemed to be modifiable, a party seeking to amend or terminate their spousal support payment generally needs to prove a “material change in circumstances”. As you can imagine, there is a lot of litigation regarding what constitutes a “material change in circumstances”–particularly in cases involving persons who are retired, or are seeking to retire.

With this upcoming amendment (which you can review here: Spousal Support Amendment to 20-109) the new law will specify that reaching full retirement age can serve as a material change in circumstances. Under the new Va. Code §20-109, Judges will need to consider several factors relating to the unique circumstances of an individual’s retirement in determining whether a modification is appropriate. The courts will also be able to take into account the assets and property of both parties in determining whether a modification is proper.

If you have any questions about how the new Virginia Spousal Support law may impact your case, contact an experienced Virginia divorce lawyer at BoykoNapier today. Our attorneys handle divorce, family law and support matters throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. To contact a BoykoNapier attorney, call 804-658-3418, or you may reach us via email.

Virginia Child Visitation – Finding the Right Arrangement

January 8, 2015 By Marc Leave a Comment

Man with child — Courtesy of Esther Gibbons via flickr.com
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If you have children and are separated or divorced from the other parent, chances are you have a visitation arrangement of some kind. It might be a simple understanding with no concrete terms, or it might be spelled out in detail and contained in a written Virginia court order. Whatever the case, it is important for separated parents to be open-minded about what visitation arrangement is best for their child. After all, kids change as they grow up, and what works today might be broken tomorrow.

We frequently have folks come to us with one question: How do I figure out what visitation arrangement is best? Unfortunately, we cannot answer that one for you. There is no person better equipped to answer that question than you, the parent. You have unique knowledge about your child, and about the kind of relationship (or lack thereof) they have with the other parent. Only you will know if the right arrangement for your child requires a dozen provisions to iron out every possible scenario, or if the right arrangement is to leave the options open at all times.

Common General Visitation Arrangements:

“Every Other Weekend” – very typical for school-aged children, this arrangement normally provides the non-custodial parent with visitation on alternating weekends, usually from Friday evening to Sunday evening. Additional visitation time could include weekday dinner visits or participation in extracurricular activities.
“Fifty/Fifty” – also referred to as joint physical custody, this arrangement provides each parent with an equal amount of visitation time with the child. Often, this is week-on week-off. However, some parents split the week and alternate weekends, while some alternate every day. There are also some parents who get limited time during the school year, but get the entire summer and most holidays in order to achieve a true fifty/fifty arrangement.
“Shared” – a shared visitation arrangement (also called shared physical custody) describes a situation where both parents have a substantial amount of visitation time, though not necessarily fifty-fifty. For example, a parent who receives three-weekends a month during the school year, and every other week during the summer would usually be considered to have shared custody of their child. As you can imagine, the types of visitation arrangements that fall under this category are numerous and often times very creative.
“Supervised” – a supervised visitation arrangement in Virginia is a situation where the non-custodial parent’s visitation time must be supervised by another person. This is usually a third-party relative, though it may be the other parent or even a formal facility that provides supervision.

(Note: the phrase “general visitation” is often different from holiday and summer visitation. Many parents will have an additional visitation arrangement for major holidays, and allot additional visitation time during the summer months.)

If you are looking for factors to guide your decision, it might be helpful to glance at the “best interests statute” (Va. Code 20-124.3), which sets forth the factors that Virginia judges are required to consider when determining a visitation arrangement. However, you are not limited by these factors. Use your best parenting skills to figure out what visitation arrangement would best suit your son or daughter. Even if you cannot reach an agreement with the other parent, at least you will be prepared to articulate your desired outcome to your attorney, or to a judge or mediator.

If you have a questions about your child visitation case, it is important to speak with an experienced Virginia family law attorney. The lawyers at BoykoNapier are experienced in all types of family law and divorce cases, including child custody, visitation and support. Our attorneys represent clients throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. Call BoykoNapier at (804) 658-3418 to schedule a consultation, or contact us via email.

“I Want Custody” – How to File in Virginia

September 15, 2014 By Marc Leave a Comment

Courtesy of Todd Binger via flickr.com license link — Courtesy of Todd Binger via flickr.com
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“I want to file for custody of my child. How do I do that?” As you can imagine, this is one of the most common questions posed to a Family Law Attorney. Because filing for child custody or visitation is a stressful and confusing endeavor, we wanted to take a few minutes to share some information. However, we cannot offer specific legal advise in this post because every case is unique. That being said, we strongly encourage you to speak with an experienced Virginia Family Law Attorney about your circumstances.

Issue 1: What do I file in Virginia?

In Virginia, custody and visitation cases are normally initiated when a parent or other interested party files a “Petition”. This assumes that there has never been any other court cases involving your child (if so, you would likely need to file a different pleading known as a “Motion to Amend”) and that Virginia has jurisdiction (see below).

Depending on the locality where your Petition is filed, you may have to make an appointment. You will also typically be required to pay a filing fee, and to fill out a Uniform Child Custody Jurisdiction and Enforcement Act Affidavit. Because of the varying policies of the different localities, it is advisable that you contact the locality where you plan to file in advance, or do some online research–Henrico County, for example, posts information about filing petitions on their website.

Issue 2: Where do I file?

This question is very case specific and consultation with a Virginia child custody attorney is highly recommended. In order to determine where to file, several additional questions must be answered first in order to determine what state and locality has jurisdiction over custody and visitation of your child (i.e. what state/locality has the legal authority to make a ruling on custody/visitation).

Can you file in Virginia? Briefly put, here are a few of the common issues that could potentially disrupt Virginia’s jurisdiction:

There is an existing court order from another state regarding custody and visitation;
Your child lives in another state;
Your child has lived in Virginia for less than six months and another parent lives outside of Virginia.

Assuming Virginia has jurisdiction, another significant hurdle is determining what city or county you should file in. If you have never been to court before regarding your child, you will most likely want to file your petition(s) in the Juvenile and Domestic Relations District Court in the city or county where your child resides. However, there are numerous issues that could impact this as well: for example, if the other parent of your child just moved out and took your child and moved to another locality, you may want to file where you live, and not in the locality where the child is now located. Long story short, speak with an attorney to go over your specific circumstances to be sure you are filing the appropriate documents in the appropriate location.

Issue 3: What Will Happen After I File?

Procedurally speaking, you will usually get a court date where a judge will make decisions regarding the issues before him or her (i.e. custody and visitation of your child). Every city/county has their own policies and procedures that you will want to familiarize yourself with. For example, the timeframe between filing your petition and your first court date will be different depending on where your case is being heard. Counties and cities in the Richmond area tend to have busier dockets than some smaller counties. Additionally, some localities refer parties to mediation and/or parenting classes prior to the Court date (or sometimes following the first Court date). There are also a variety of other issues that could arise during your case, including: the appointment of a guardian ad litem to represent your child; psychological evaluations; counseling requirements; and the list goes on.

The attorneys at BoykoNapier are experienced in all types of Child Custody and Visitation matters in Virginia. Our attorneys handle cases throughout Central Virginia, including Richmond, Chesterfield, Henrico, Hanover and the surrounding communities. Call us to schedule a consultation at (804) 658-3418, or contact us via email.

Difficulties in Divorce: Settling Before Court

June 23, 2014 By Marc Leave a Comment

Richmond Skyline — Courtesy of Ron Cogswell via flickr.com
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In Virginia Divorce cases, we work hard with our clients to attempt to resolve each case by settling out of court.

Believe it or not, in our experience, most cases are resolved before Court. Why is that?

Because it is almost always in everyone’s best interest to finalize a case as quickly as possible.
The parties save money and time, and shield themselves from unnecessary emotional turmoil that naturally comes from battling things out in a courtroom.
If you have children, it is even more important to reach a resolution; the longer litigation lingers, the more your children will get dragged into the middle.

Suffice it to say, you should strongly consider an out of court settlement, provided the terms are reasonable and equitable. How do you decide when a settlement offer is reasonable and fair? Great question. The answer depends on the facts of your case. This is one area where your attorney’s experience will play a significant role.

Communication directly between Attorneys

Perhaps the most common avenue to a settlement is the correspondence between the attorneys who represent the respective spouses. Many cases have very few contested issues, making it relatively simple for the attorneys to help the parties resolve the case after just a few phone calls, emails or letters back and forth. If the issues haven’t been resolved, or at least narrowed, after a few exchanges, it is probably time to consider other settlement methods.

Settlement Conference

A settlement conference is a face-to-face meeting between the parties and their attorneys to allow the parties to converse with each other about their respective positions. Settlement conferences are certainly emotional (far more so than exchanging letters), but they are usually very productive because communication between the parties in-person is one of the best ways to help them reach agreeable terms.

It is common for a Judge to require parties to attend a settlement conference prior to their trial date. If you have been unwilling to attend a settlement conference for one reason or another, we would urge you to reconsider. Speak with your attorney about the benefits of such a conference and you just might decide to change your mind.

Mediation in Divorce Cases

Similar to a settlement conference, a Mediation is a meeting between the parties to discuss settlement. The difference here is that a neutral individual (the “mediator”) is present to assist the parties by facilitating discussions and making recommendations. The mediator is often someone trained in the law (a lawyer or a judge), who will help guide the parties towards a resolution by analyzing the facts and the legal issues involved in the case. Mediation has a high success rate and is therefore a very popular settlement tool.

Property Settlement Agreement

In Virginia, once the parties reach an agreement, the terms of that agreement are often put into a written contract referred to as a “separation agreement” (or “PSA” for property settlement agreement). The PSA should spell out all of the terms of the parties’ agreement and should be filed with the Virginia Court when the parties finalize their divorce. You can read more about property settlement agreements here.

The family law and divorce attorneys at BoykoNapier are experienced trial attorneys. We handle cases through Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. If you have questions about a separation or divorce, call us today at (804) 658-3418, or contact via email.

Difficulties in Divorce: Filing Your Tax Returns

February 14, 2014 By Marc Leave a Comment

It’s that time of year: Tax Time!

Each year, as the dreadful deadline of April 15 approaches, we are confronted with questions from clients about how they should deal with filing taxes. These inquiries are so common we thought it might be beneficial to post a few bits of information in order to highlight some issues that frequently arise. Please note: you should be sure to speak directly with your tax-advisor or attorney for specific advice regarding your tax filings.

Situation A: Separated, but not yet Divorced.

Do I file jointly or separately?
Who claims mortgage interest deductions?
Who claims the children?

These are very good questions. If you have a current custody and/or support order, or a property settlement agreement, be sure to check whether these issues are addressed. It is common for court orders and agreements to address all of these issues, as it makes the process of filing taxes easier on both spouses. It would also be wise to consult the Internal Revenue Service’s website, as it answers a lot of common questions.

It is important to speak with your tax-advisor or attorney before deciding whether to file jointly or separately. Often times, it will make more financial sense to file jointly because of the tax benefits—however, a joint filing can create arguments over how to divide the tax return. It is common for the tax refund to be held in escrow by your attorney until you and your spouse can agree on the division of the refund. If your spouse claims a deduction (i.e. mortgage interest, children) that you believe you might be entitled to, it would be wise to immediately consult an attorney or tax-advisor.

Situation B: Separated part of the year, Final Decree of Divorce entered in the tax year.

Do I have to file jointly?
Can I file separately?

Again, great questions. If this situation applies to you, we strongly suggest you refer to the Internal Revenue Service’s website and the Virginia Department of Taxation website. If your divorce was finalized, be sure to double check your divorce decree to determine if these issues are addressed.

Can I be held liable for my soon to be ex-spouse’s tax debt?

Maybe! If your husband or wife has tax debt/liens which you are aware of, be sure to bring this to your attorney’s attention. If you have already filed and the IRS has put you on notice that a portion or all of your tax return will be deducted for your ex-spouse’s tax debt, contact an attorney right away. You should also refer to the Innocent Spouse Relief information through the IRS website. You can apply to be held harmless from your spouse’s tax debt under certain circumstances.

If you have additional questions, please contact the attorneys at BoykoNapier. Our Virginia family law and divorce lawyers handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding communities. Please call us at (804) 658-3418, or 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.

Difficulties in Divorce: Spousal Support Litigation in Virginia

October 29, 2013 By Marc Leave a Comment

Scales of Justice — Courtesy of Tim Evanson via flickr.com

It should come as no surprise that spousal support (Alimony) is often a hotly contested issue between a husband and wife during the divorce process. The primary wage earner in the family (a.k.a. the breadwinner) almost never wants to pay support, while the lower wage earner (often the homemaker) usually asks for financial assistance. This disconnect often leads to litigation.

In Virginia Circuit Courts, Judges have the express authority to award alimony to a spouse upon their request, which usually occurs incident to a divorce proceeding. Assuming that the parties are unable to reach an agreement on support, Judges will typically conduct a hearing, listen to the evidence, and then look primarily to Virginia Code Sections 20-107.1 and 20-109 to analyze the issue before reaching a decision. If you are in the midst of a divorce that involves the issue of spousal support, it is important that you review these statutes very carefully.

Note: The standards in Juvenile Court may be different. Look at Virginia Code Section 16.1-287.17:1 which sets forth a formula for temporary spousal support in Juvenile Court (somewhat similar to the child support guidelines).

Statutory Bars to Spousal Support:

Adultery – if the Court finds you have committed adultery, it is possible that you will be prohibited from getting support.
Cohabitation – if the Court finds you have resided with another in a relationship analogous to a marriage for a year, you may unable to obtain future support.
Remarriage – if the spouse receiving support remarries, it may bar future support.
Death – death of either party will usually bar future support.

Will the Judge Award Spousal Support? Arguing the Factors:

Assuming there is no statutory bar to alimony, the Judge’s decision will usually be guided by the 13 statutory factors from Virginia Code 20-107.1. While all 13 factors are important, Virginia Lawyers often focus a few key factors when analyzing whether support will be ordered:

Factor 1. “The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature”.
- Virginia Lawyers often break down this factor to two issues: Need and Ability to Pay. This suggests that requesting party must prove they have a need for support, and the requesting party must prove the other party has an ability to pay support. This issue will often be analyzed using monthly income/expense statements for both parties.
Factor 2. “The standard of living established during the marriage”.
- This factor has an impact on factor 1. Even if the primary wage earner can afford to pay support, if that payment isn’t necessary to allow the requesting party to live a similar lifestyle than a Judge may be hesitant to award support.
Factor 3. “The duration of the marriage”.
- The shorter the marriage, the more unlikely a Judge may be to award support.
Factors 9 and 12. These factors involve employment decisions and earning capacity. Issues frequently arise that involve questions about one parties efforts to obtain employment, or to earn as much as they are capable of earning.

If the Judge Awards Alimony, For How Long?

Looking at Factor 3 addressed briefly above, the length of the marriage is one of the primary issues that impacts the length of alimony payments. It is sensible to assume that longer marriages will yield longer support orders. Significant physical and mental conditions of the parties and/or their children in common can also have a significant impact on the length of support. As this article is not intended to offer legal advice, it is important to speak with a skilled Family Law Attorney to discuss the issues pertinent to your case.

If you have questions about spousal support, the experienced Family Law and Divorce attorneys at BoykoNapier can help. Our attorneys handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield and Hanover. Call us for your free consultation at (804) 658-3418 or contact us via email.

Annulment vs. Divorce

September 17, 2013 By Marc Leave a Comment

Richmond Church — Courtesy of Desiree N. Williams via flickr.com

Because we get asked this question often, we thought it would be prudent to clear up some common misconceptions about the grounds for Annulment.

Let’s start with the basic definitions:

An Annulment is a legal declaration that a marriage was invalid (a.k.a. null and void).

A Divorce, on the other hand, terminates a marriage between two parties. A divorce does not negate the legality of a marriage, it simply dissolves the marriage.

Grounds for an Annulment

It is surprising to most that the grounds for annulment are very limited and are broken down into two categories: void and voidable marriages.

Void Marriages: marriages that the law determines to be automatically invalid

Bigamy: at least one of the parties was still validly married to someone else at the time of the marriage
Relative Marriage: where the parties closely related (i.e. brother/sister, aunt/nephew)
No License: in order for a marriage to be valid in Virginia, the parties must have obtained a marriage license.
Underage without Consent: Persons under 16 cannot marry (absent pregnancy) and persons under 18 must obtain parent/guardian consent to marry.
Incapacity: when either party lacked capacity to enter and consent to marriage, unless the parties were married for two years or more at the time of filing for Annulment, or the parties continued cohabitation after full knowledge of the basis for the Annulment. The party who had capacity at the time of marriage, if applicable, shall not be entitled to file for an annulment.

Voidable Marriages: marriages that the law may determine to be invalid, depending on the circumstances

Impotency: if existing at the time of marriage
Felony conviction: if either party was a convicted felon at the time of marriage and had not disclosed such fact to the other party.
Pregnancy: Without knowledge of the other, if the wife was pregnant by someone other than Husband at the time of marriage, or if Husband fathered a child by another woman within 10 months of marriage
Prostitution: if either party had been a prostitute prior to marriage and had not disclosed such fact to the other party.
EXCEPTION: as with incapacity marriages above, these grounds for Annulment will be deemed waived if the parties were married for two years or more at the time of filing for Annulment, or the parties continued cohabitation after full knowledge of the basis for the Annulment.

NOT grounds for Annulment (to the shock of many):

Being married less than 6 months.
Failure to consummate the marriage.
Criminal conviction after marriage.
Never cohabitating together as husband and wife
Not knowing that your spouse carried substantial financial debt

Grounds for Divorce:

The grounds for divorce are far more broad and include uncontested grounds (i.e. one year of separation) and contested grounds (i.e. adultery). For more details regarding the grounds for divorce, please see: Contested vs. Uncontested Divorces.

If you have questions about an annulment or divorce, the experienced family law and divorce attorneys at BoykoNapier can help. Our attorneys handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield and Hanover. Call us to schedule a consultation at (804) 658-3418 or contact us 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.