When getting divorced with a child, the most important point in any litigation or divorce settlement is the custody of the child and visitation rights of the parents. This can be a touchy issue as time allotted to parents to spend with their child is a zero sum game. Every day spent with one parent takes that day away from another parent. That is why it is crucial when negotiating a divorce to know the proper information regarding how custody and visitation rights are decided in Virginia courts.
The first point to consider in custody negotiations is which parent left the home without the children. The parent who stayed in the same home as the children is more or less awarded points with the judge and has a higher standing in the ultimate decision. While presumptions for custody usually favor the woman, women who leave without the children are penalized more severely than men. While this no doubt seems sexist and unfair, it is a grim reality you should consider in an a custody battle.
Virginia state law prohibits any preference in custodial proceedings towards a specific gender and has outlawed the tender care doctrine. The doctrine, which applied in the past, stipulated that in a child’s “tender years” (four and under), a child should be cared for by his or her mother. Although sex-based preference is illegal on paper, common considerations such as who was the primary caretaker and which parent was more nurturing often favors the female parent.
Children in their teenage years are allowed “clear elections” of with which parents they prefer to live. The courts typically honor these decisions as long as the child is not making an irrational decision to stay with an overindulgent or unfit parent.
What the courts deem a “usual” arrangement in terms of visitation, regards a child who is not an infant where there is no parent that has never cared for the child overnight, and the parents live within a reasonable distance of each other. The arrangement is alternating weekend custody, alternating custody on major holidays and the child’s birthday year by year. The father usually has custody on Father’s Day and the father’s birthday, while the mother has custody on Mother’s Day and the mother’s birthday.
In situations regarding long distance visitation, the visitation periods are often limited to one to three longer periods each year, often during times, the child has off school such as summer vacation and Christmas break.
Establishing a clear and mutually beneficial visitation and custody arrangement is absolutely essential for divorced parents. Although the terms may be hard fought, with winners and losers, the ultimate outcome should be one that improves the lives of both the parents and the child. At the Law Firm of Ferguson, Rawls & Raines, we have a collective 65 years of representing clients and fighting custody battles. Do not go through this painful process alone. Contact us today.
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