Child Custody: The Basics

Child custody cases (including divorces) are very complex.  Because of that, I can't explain all of the details of a child custody case in one article but I can provide you some of the basics.

Custody cases typically begin one of two ways: 1) as part of a divorce or 2) with a petition for custody to be determined.  If it is part of a divorce, it can either be heard in the Juvenile and Domestic Relations Court OR the Circuit Court.  If it is a petition for custody to be determined, the case will be heard in the Juvenile Domestic Relations Court.  The main difference is that if the case is heard in the Juvenile and Domestic Relations Court, your case can then be appealed to the Circuit Court for a new hearing and ruling.  See more on appeals here.

If you begin in the Juvenile and Domestic Relations Court, there will be a preliminary date set at which time both parties, you and your child's other parent, will appear in court to determine the issues and set the case for trial.  At this point, the judge may appoint a guardian ad litem ("GAL") as well (see more about the role of the GAL here).

If a guardian ad litem is appointed, the GAL will do an investigation over the coming months between your preliminary date and the trial date.  During this time, the GAL will interview both parents and meet with the child.  He/she may or may not interview extended family, doctors, teachers, etc. and may do announced or unannounced home visits to each parent's home.  The GAL will gain as much information as they deem necessary to determine what they will recommend to the judge as being in the best interests of the child.

At the trial date, the person who filed the petition for custody determination (or in Circuit Court the person who filed for the divorce) will first put on evidence.  For the evidence the judges typically consider when making their determination, see here.  Next, the other parent will put on evidence in support of his/her position.  Finally, the guardian ad litem may put on evidence and make a recommendation to the judge on how he/she should rule.  That recommendation is just that, a recommendation.  It is not the judge's ruling and the judge is under no obligation to follow the GAL's recommendation.  Finally, the judge will make the custody determination and issue an order spelling out the terms of the custody.

At that point, as noted above, you may be able to appeal your custody case to the next highest court.  While these are the basics to a custody case, the details can be very complex.  Typically, the sooner you retain an attorney in the process, the better off you will be. 

If you are going through a custody or divorce case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Why you should avoid social media during a divorce

Everyone is on social media these days, whether it's Facebook, Twitter, Instagram or another website.  It's a quick and easy way to express ourselves, gain support from family, friends and acquaintances and show our support for those people as well.  During a divorce or custody case, however, you may want to keep those things limited to more private settings and here's why:

1.  You never know who can really see what you're posting.
Let's say you are recently separated and went out last weekend for a fun, crazy, girls weekend.  You had a great time and want to share those hilarious pictures with your circle of friends.  But do you want your spouse to see those pictures?  His attorney?  The Judge handling your divorce case?  Probably not.  The most innocent pictures and posts can be taken completely out of context and used against you during your case.  Even if you've blocked your spouse, maybe you forgot to block his best friend.  May his best friend saw the pictures, saved them and emailed them to your spouse.  Or maybe you're still Facebook friends with his sister because you still get along great and she saw those pictures and held onto them herself.  The point is, when you post something on Facebook, Twitter or Instagram, your audience may be larger than intended.

2.  You cannot control who posts things about you.
You can only limit posts about you.  Back to the previous scenario, let's say it's your best friend who wants to post those pictures.  If you are not on the social media sites, at the very least, your friend cannot tag you in those pictures and advertise that you are in them.  However, if you are going through a divorce or custody case, you should talk with your friends and family and make sure they understand that you do not want anything involving you to be put on social media.  Most people will understand where you are coming from.  If not, talk with your attorney about how to limit any unwanted exposure on social media. 

3.  The support you get from your social media group may actually hurt you.
You're in the middle of trying to settle a custody dispute with your soon to be ex-spouse and you're frustrated.  So you turn to Facebook to express that frustration.  Next thing you know you have a full list of friends providing advice on how to handle those negotiations: "tell him you're the mom so you should obviously have the children", "bring out the fact that he had a speeding ticket 10 years ago and you'll definitely win", etc.  While these are most likely friends and family members that intend on supporting you during this tough time, this support can actually hurt you.  Your custody case and any negotiations taking place are specific to your case.  What worked for your best friend's cousin, may not be applicable in your case.  Leave these discussions for you and your attorney.  If you need to vent to someone, talk with your attorney about an appropriate person to vent to and how to keep yourself focused on your case. 

The bottom line is that social media can hurt you in unexpected ways when you are going through a sensitive case. Always be careful what you put on the internet, you never know where it'll end up.  Turn to close friends and family for support in ways other than social media.  And always keep your attorney involved and up-to-date on anything that is posted on the internet.

If you are going through a divorce or custody case and would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

How can you enforce a Property Settlement Agreement, Final Decree of Divorce or custody arrangment?

A property settlement agreement or a final decree of divorce setting out each party's future obligations (dividing assets, paying spousal or child support, custody and visitation, etc.) are great...until someone doesn't do what they are supposed to.  So what do you do when your ex-spouse is not paying you support or won't sign the title to transfer ownership of a home or vehicle?

The most common avenue for enforcing these arrangements is through a "Show Cause".  A Show Cause is filed by the party who feels the other party is not abiding by the terms of the court order.  It requires the offending party to appear in court and show cause, or some reason, why they are not abiding by the court order.

You will be obligated to prove that the offending party is not actually abiding by the court order.  There are different ways to go about proving a violation of the court order, but all evidence is subject to the state's evidence rules.  There are also some reasons for violating an order that a court will excuse the offending party from punishment (i.e., I was in the hospital and unable to write the check until I got out so the payment came a few days late).  Those legitimate reasons vary depending on the court, the judge, the circumstances, etc.

Because of the complex and subjective nature of these proceedings, you should seriously consider retaining an attorney to represent you in the proceedings.  The consequences of a show cause could include a fine, jailtime, payment of the other party's attorneys fees, etc.

If you would like more information or a consultation on a show cause proceeding, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

In some cases, you can change your current custody and visitation arrangement

Whether your current custody and visitation arrangement is by court order or by agreement or both, if you are unhappy with the current arrangement, you may be able to change it through a Motion to Amend.

There are two distinct parts of a Motion to Amend.  First, you have to show the court, through evidence, that there has been a change in circumstances since the last court order or agreement.  This can be a variety of things: deteriorated health of one party, moving a significant distance, the child's age and schooling requirements, etc.  This is very fact based and the more change you can show a judge, the more likely the judge will find that there has been a material change in circumstances.

Assuming the court finds a material change in circumstances, the court then must determine a new custody/visitation arrangement that is in the best interests of the child(ren).  For a refresher on what "best interests of the child" means, take a look at our previous post on custody here. 

Because these cases are extremely fact based, it would be wise to retain an attorney who is familiar with the rules of evidence to represent you and present the strongest case possible.  If you would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com

Divorce: Not just about the law

When you think of divorce, the next thought in your head is likely "attorney" or "court" or "law".  As a divorce attorney, it is important to ensure our clients look at the big picture and not just the legal aspect of the divorce.  There is a large network of individuals and groups who can help you through the process of a divorce and to help you be most successful, I have provided a general idea of those resources below:

Counselor/Therapist.  There are many counselors and therapists who specialize in divorce issues (for you and for your children if you think it would be beneficial).  Talk with your attorney about who they know and trust that might be able to help you and your family during this emotional time.

Financial Advisors.  Starting out on your own after a divorce can provide some new and difficult hurdles financially.  Talk with your attorney to help you find a trusted financial advisor who can help you plan for your future.

Support Groups.  A support group may be helpful for you to work through the changes occurring in your life.  An attorney should be able to point you in the right direction to finding a support group that will benefit you.

Coparenting Classes.  Sometimes this is court ordered, other times it may just be a good idea.  You and your ex-spouse now need to learn how to parent your children while not being together.  Coparenting classes will help you learn those skills and how to properly interact with each other and your children in this new environment.  Your attorney can help you find a coparenting class to fit your needs.

These are only a few resources an attorney can help you find and use during and after your divorce.  You should never hesitate to ask your attorney for information on other resources.  If you would like a consultation on your divorce, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Custody: Do you understand the role of the guardian ad litem (GAL)?

Custody cases can be complex, emotional and just plain difficult for a lot of people.  Aside from the emotions and practical challenges of dealing with a court case, you have to figure out who is who and what their role is.

Guardians ad litem are appointed in a lot of custody cases, especially those where the mom and dad are unrepresented and do not have an attorney.  If you have an attorney, your attorney should explain the role of the guardian ad litem.  If you do not have an attorney, the guardian ad litem should explain his/her role.  However, things that should be done are not always done and sometimes there is just a disconnect between one person's explanation and the other person's understanding.

Here's a brief overview of the role of the guardian ad litem, or GAL, in custody cases. 

The GAL represents the child in the case.  This is a very similar relationship that you, as an adult, would have with an attorney.  The GAL's role, however, is slightly different, in that sense.  When you are represented by an attorney, with some limitations, that attorney MUST do what you want him to do.  He MUST advocate for what you want.  A GAL, on the other hand, does an independent analysis of what is in the best interests of the child.  The GAL MUST advocate for the best interests of the child, even if the child says he wants something different.  Similarly, when you are represented by an attorney, again with few limitations, any communication between you and that attorney MUST remain confidential.  A GAL, however, may disclose those confidential communications if he finds it is in the best interests of the child.  For example, if the child says, "don't tell anyone but my mom/dad/brother hurts me", it is likely in the best interests of the child that the GAL alert appropriate parties and obtain help for the child.

Another aspect of the GAL's role is to provide a recommendation to the judge on how he/she should rule.  This recommendation is formed after a thorough independent investigation and review of the case.  A judge can only consider the evidence before the court (which does not include things such as hearsay).  The GAL, however, may consider all information obtained in his/her investigation.  The Court is not required to follow the GAL's recommendation, but many times the Court puts significant weight on the GAL's recommendation.

Finally, it is the role of the GAL to explain the court proceedings to the child.  The GAL should talk with the child before court and explain the roles of each party, what the court proceedings will be like, etc.  This explanation will vary greatly depending on the age, maturity and education level of the child.  An important duty involved in this role is to talk with the child after the conclusion of the case and explain to the child what the outcome of the case is: is he now going to be living with mom, will he see dad every weekend instead of every other weekend, etc.

This is a brief overview of the role of the GAL.  The specifics of how a GAL carries out his responsibilities and duties depends, in large part, on the specific circumstances of the case.  If you are involved in a custody case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Is it possible to legally separate while living in the same house as your spouse?

In Virginia, as with all states, the laws surrounding divorce are constantly evolving and adjusting.  As I have discussed in previous posts, in order to finalize a divorce, the parties must live separate and apart for a period of six months, or 1 year, depending on the circumstances.  This can be very difficult for families who are on limited income and/or have a lot of expenses. 

Slowly, the courts have started to recognize the idea of separation while living in the same house.  Whether the court finds that you have lived separate and apart, despite living in the same house, is extremely fact based, meaning there is no bright line and the courts look at each case differently. Because of this, it is very important that you consult with a lawyer for the best chances of the courts finding that you lived separate and apart for the required period of time.

Some things the Court will look at and you should be doing to ensure your legal separation are:

• Absolute, complete sexual abstinence (one incidence can restart the clock)
• Separate bedrooms
• Separate bank accounts
• Separate meals, grocery shopping, laundry, etc.  
• No outings as a couple (including church, meals, etc.)
• Inform family and friends of the separation 
• Have a close family member or friend come to the home periodically to observe you and your spouse living separate and apart
• Act as roommates, not as spouses

As I said, there is no bright line rule, so those are just some of the types of facts courts will consider when deciding whether legal separation has occurred.  If you would like a consultation or help navigating the separation and divorce process, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.