Child Custody

We are thrilled to announce that thanks to your incredible support and votes, we have won the Silver Place in Best Family Law Firm Southside Coastal Virginia Reader's Choice, published in July/August 2024 issue. This recognition means the world to us and serves as a testament to our commitment to excellence.

We extend our heartfelt gratitude to each and every one of you who took the time to vote and support us. Your loyalty and trust inspire us every day.

Here's to many more successes together!

Click here to view the full publication: Coastal Virginia Magazine

Factors Under Review

When making custody decisions, Virginia courts prioritize the child's best interests. They consider numerous factors to ensure a safe and stable environment with the goal of fostering the child's well-being and development.

Commonly considered factors under Virginia law include:

• The age and physical and mental condition of the child.
• The age and physical and mental condition of each parent.
• The relationship existing between each parent and the child.
• The needs of the child.
• The role each parent has played and will play in the future in the upbringing and care of the child.
• The propensity of each parent to actively support the child's relationship with the other parent.
• Each parent's relative willingness and demonstrated ability to maintain a close and continuing relationship with the child.
• The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, age, and experience to express such a preference.
• Any history of family abuse.
• Any other factors the court deems necessary and proper to the determination.

Under Virginia law, any history of family abuse, defined by § 16.1-228 of the Code of Virginia, sexual abuse, child abuse, or acts of violence, force, or threats that have occurred in the past ten years may diminish a party’s chance of obtaining or retaining custody of their child.

How Instances of Domestic Violence Can Trigger a Modification of Custody

A parent of a child or child protective services can seek modification of a court order or initiate judicial proceedings in the event a child is subjected to or observes domestic violence in the home. Virginia law places a high priority on the safety and well-being of children, and any proven incidents of domestic violence, especially in the presence of a child, can prompt court intervention.

Parent-Requested Modifications

When a parent learns their child was a victim of or observed domestic violence, or if a parent is a victim themselves, they may file a petition to modify an existing custody or visitation order. They may also seek out an emergency protective order to protect their child, themselves, or both. To initiate this process, the parent must go to the courthouse and speak with a juvenile and domestic relations court clerk, and also document the incident, which may take the form of police reports, medical records, or witness statements. At a hearing, the court will then assess the credibility and severity of these claims to determine whether modifications to the custody arrangement are warranted.

CPS-Driven Cases

In cases where domestic violence is reported to Child Protective Services (CPS) or law enforcement, the state may remove the child from the home and pursue a modification of custody arrangements. In severe cases, this may result in the termination of parental rights for the offending parent.

In either scenario, the best interests of the child remain paramount. Consequently, any substantiated case of domestic violence can lead to significant changes in custody arrangements to ensure the child's safety and well-being.

Seeking Legal Assistance for Domestic Violence Cases

If you and your family are dealing with domestic violence, speaking with an experienced family law attorney can be highly beneficial. Attorneys at The Law Offices of Daniel J. Miller have a thorough knowledge of the Virginia Code and have helped countless families navigate similar situations. We are dedicated to providing the support and expert guidance you need during this challenging time.

We provide a wide range of domestic-violence-related legal services, including:

• Helping secure protective orders.
• Guidance in seeking child custody modifications.
• Representation during domestic violence hearings.
• Representation in interactions with CPS.
• Defense against false allegations of domestic violence.

Our team is committed to helping you preserve the safety and well-being of your family, and we are here to help when you need us. Do not hesitate to reach out for a consultation to discuss your case and explore your options.

Divorce is never easy, whether in a civilian or military setting. However, situations such as deployment, active duty in the military, and military-provided benefits may cause some complications in a divorce involving military members.

Two of the most common complications when it comes to military divorce are as follows:

• child custody and visitation rights; and
• eligibility and division of military-provided retirement benefits

Custody and Visitation

The issue of custody and visitation is an important matter that needs to be resolved by couples considering divorce. This matter could be incredibly complicated for divorcing couples where one of the spouses is a military member and is on active duty or deployed. As with custody and visitation matters involving children, the ultimate goal is to have an arrangement in the child's best interest. As such, military parents can have proper parenting time with their children.

The Servicemembers Civil Relief Act (SCRA) protects the legal rights of military parents on active duty or deployed to obtain a stay or temporary postponement of custody proceedings in the courts if their military service affects their ability to proceed with the case.

Military-Provided Retirement Benefits

Division of assets is a significant point of contention for any divorcing couple. In addition to the shared property assets, military members' retirement benefits such as TRICARE, commissary and exchange privileges, and retirement payments are substantial assets that may be afforded to non-military spouses in the event of divorce from their military spouses.

Two different rules are applicable in determining the eligibility and division of these significant military-provided retirement benefits to a divorcing couple. These rules are the 20/20/20 rule and the 10/10 rule.

• What is the 20/20/20 Rule?

The 20/20/20 rule is applied in determining whether a non-military spouse may be eligible to receive the same lifetime benefits such as TRICARE, commissary, and exchange privileges as their military spouse after their divorce.

For a non-military spouse to gain to receive these lifetime benefits under the 20/20/20 rule, the following criteria must be met:

• The military and non-military spouse must be married for at least twenty (20) years;
• The military spouse must have served in the military for at least twenty (20) years; and
• The spouses' 20-year marriage must overlap twenty (20) years of the military member's service.

However, it is essential to note that these lifetime benefits can only be enjoyed by a non-military spouse after their divorce from a military member as long as they do not remarry. Once the non-military spouse remarries, their eligibility for the lifetime benefits afforded by the 20/20/20 rule will stop.

• What is the 10/10 Rule?

The 10/10 rule applies in determining the eligibility of a non-military spouse for the direct payment of retirement benefits.

The 10/10 rule applies if the following criteria are met:

• The military and non-military spouse must be married for at least ten (10) years; and
• The ten (10) years of marriage must overlap with the military spouse's ten (10) years o service.

If the 10/10 rule is applicable, then the retirement pay will be made directly to the non-military former spouse.

• What If We Do Not Meet the 10/10 Rule?

It is important to note that non-military spouses may still be eligible for a share of their military spouse's retirement pay even if they do not meet the strict 10/10 Rule. Under the Uniformed Services Former Spouses' Protection Act, judges handling the divorce between a military member and a non-military member can award a share of the retirement payment as they deem necessary. However, the significant advantage of the 10/10 rule is that the retirement benefit payment is made directly to the non-military former spouse.

Child custody cases are often viewed as two parents contesting how they try to convince the court to consider their rights and interests. But in reality, child custody cases are between three parties - the two parents and the children. Each parent is strongly encouraged to obtain their legal representative in a child custody case to argue and fight for a favorable outcome. However, children do not hire their legal representative to argue for their interests. Instead, the court-appointed Guardian ad Litem will look into a child custody case and make proper recommendations on what outcome is in the child’s best interest.

What is a Guardian ad Litem (GAL)?

The term Guardian ad Litem is translated to mean a "guardian for the lawsuit." Typically, a Guardian ad Litem are individuals, generally lawyers, that the judge of a family custody case appoints to do the following:

• Protect the rights and interests of the child;
• Conduct independent investigations and interviews;
• Provide the court with a report that analyzes the best interests of the child; and
• Participate in court hearings or mediations representing the interests of the child.

The Commonwealth of Virginia relies on the Guardian ad Litem to provide an independent recommendation to the court on what is best for their client, which is the child, which may not necessarily be what the child would want. This means that a Guardian ad Litem has to assess the family dynamics and the child's needs instead of simply taking in the child's preference.

It is essential to understand that a Guardian ad Litem only represents the child in the case and not either parent, even if the child is under the custody of one of the parents.

Why Does My Guardian ad Litem (GAL) Not Like Me?

There are numerous reasons why you might have a tense relationship with the appointed Guardian ad Litem or if you feel they might not like you or perceived not to like you. Some of the possible reasons for a challenging relationship with your Guardian ad Litem could be one of the following:

• If the GAL feels that you are not cooperating with them;
• If the GAL perceives that you do not respect their role in the child custody case.
• If the GAL determines that you are coaching your child on what to say to them or the court;
• If you send numerous texts and emails or call the GAL constantly without respecting their time or boundaries;
• If the GAL determines that you are not receptive or responsive to the needs of the child or the requests of the court; or
• If you are not prepared with the documents the GAL or the court has requested.

Should I Get Legal Counsel Even If a Guardian ad Litem (GAL) is Assigned to My Child Custody Case?

Absolutely. You should obtain legal counsel even if the court assigns a GAL to your child custody case.

In your child custody case, obtaining legal representation for your interest as a parent is vital. A Guardian ad Litem is not a lawyer that will represent your interests and rights as a parent. Instead, the court-appointed Guardian ad Litem is tasked to ensure that the rights and interests are represented solely from your child's perspective. The Guardian ad Litem will not consider the interests and rights of any parent. Hence, each parent must have a lawyer representing their respective interests. In addition, a lawyer representing your rights and interest can help you navigate how to deal with a Guardian ad Litem.

Does an Appointed Guardian ad Litem (GAL) Have Any Role in The Outcome of My Child Custody Case?

Yes, a Guardian ad Litem has a significant role in the outcome of a child custody case.

Even though a Guardian ad Litem is not a judge in your child custody case or a lawyer for the parties, they play a vital role in the child custody process and, ultimately, the case's outcome.

As noted above, a Guardian ad Litem is appointed by the court to assist them in the decision-making process by recommending what is best for the child based on the independent investigation they have conducted.

The Centers for Disease Control and Prevention (CDC) has long highlighted the benefits of breastfeeding to a baby's health. This benefit is undisputed and supported by the courts as they determine that the proper custody arrangement reflects what is in the child's best interest. However, breastfeeding a child is not the sole reason a mother can get more time with a child or stop the other parent from the custody of the child.

Does a Nursing Mother Automatically Get Preference in a Child Custody Negotiation Under Virginia Law?

No. Breastfeeding does not necessarily give the mother a more favorable outcome on the child's custody agreement.

Although breastfeeding benefits a child's well-being, it is not guaranteed to give a mother more time with the child than the father. Instead, as appropriately adopted by most states, the court determines the totality of the circumstances and rules on the child's best interest. This means that breastfeeding is only one of the factors that the court must consider to determine the rightful custody agreement.

Nonetheless, a parent may present evidence to support their claim regarding breastfeeding. Such evidence may include, but is not limited to, the following:

• The current age of the child
• How long has the child been breastfeeding
• The consistency or schedule of the breastfeeding of the child
• Whether a child takes a bottle or eats solid food
• How feasible and sustainable is it for the breastfeeding mom to pump and provide breast milk to the other parent to feed the child
• The potential impact on the child's well-being if the child is to be weaned from breastfeeding

Ultimately, the court would rule in favor of what is in the child's best interest and not only on whether the child is breastfed by their mother or not.

What Does the "Best Interest of a Child" Mean?

The "best interest of a child" is the general standard adopted by all states in determining child custody agreements. However, the term "best interest of a child" is not set by a specific definition. Instead, the court has to deliberate on many factors applicable to the case to understand how they can render a custody agreement that is best for the child's overall well-being.

Under Virginia law, the courts will consider the following factors:

• Age, physical, and mental condition of the child;
• Age, physical, and mental condition of each parent;
• The existence and condition of the relationship between each parent and the child;
• A child's needs to maintain meaningful relationships with siblings, extended family, or peers.
• The existing and future role of the parent in the upbringing and care of the child;
• Each parent's tendency to support the child's relationship with the other parent;
• Each parent's willingness and demonstrated ability to co-parent effectively.
• The child's expressed preference. However, this is only applicable if the child has reasonable intelligence, understanding, age, and experience to express such a preference.
• There is a family history of abuse or violence within the past ten years.
• Other factors that the court may deem necessary and proper to consider.

Can a Child Custody Arrangement Be Modified After The Child is No Longer Breastfeeding?

Yes. A child custody agreement may be modified if the child is no longer breastfeeding.

Under Virginia Code § 20-108, a custody order may be subject to modification if:

• There has been a material change in circumstances; and
• Such amendment to the custody order is in the best interest of the child

A "material change of circumstances" is something significant that has changed since the current arrangement was adopted. As such, a child that has stopped nursing from their mother is considered a material change of circumstances. Thus, a parent can request that the existing child custody arrangement be modified based on this change, provided such modification caters to the child's best interest.

Many families choose to relocate and get a fresh start when schools are out for summer. Whether you move for a new job, to be closer to your family, or just for a change of scenery, relocating after a divorce is complicated when there are children involved. In some circumstances, this change can affect your custody arrangement, so knowing how to prepare and what to expect is crucial.

So, what are the requirements for relocation in Virginia?

Rules of Relocation

When a custodial parent plans to relocate with their child, Virginia law requires that they provide 30 days of advance notice to the court and the other parent. This may sound simple, but complications can arise if the other parent does not approve of the move. If you expect any objection or pushback from your child’s other parent, be prepared to defend your decision to relocate.

You’ll be expected to justify your reasons for moving. The most important thing you’ll need to prove is that this decision is in the child’s best interests. Specifically, there is a set of factors that a judge will want to evaluate. These include:

• The physical and mental condition of each parent;
• The age, condition, and needs of the child or children;
• The role each parent has played thus far in the child’s care;
• The relationship between each parent and the child; and
• The willingness of each parent to foster a healthy co-parenting relationship.

There are many other factors and details that can impact a judge’s decision in these matters. Our dedicated team of attorneys has over 25 years of combined experience at our disposal to help you with your child custody case. We can answer any questions you might have about Virginia’s laws and how they may affect your plans to move.

Establishing Jurisdiction

In the event you do relocate with your child, how long must you live in your new home for court jurisdiction to be established? That answer can be complicated. The Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) was enacted to create a set of rules for all states to follow in situations like this.

The UCCJEA says that the court with jurisdiction over a custody case is the one where a child has lived, uninterrupted, for six months or more. However, if there is already a custody or visitation order established in another state, and the other parent continues to reside in that state, then jurisdiction will remain there. To make things even more complicated, there is also an exception to this rule that involves factors like the length of a child’s residency in Virginia, domestic violence issues, and the financial status of the parents.

The Law Offices of Daniel J. Miller can help you navigate the complexities of Virginia’s child custody laws. Call us today at (757) 267-4949 or contact us online to set up an initial consultation.

If you are accused of substance abuse or believe your child’s other parent is abusing drugs and/or alcohol, the reality is that this can absolutely play a role in what your custody and visitation agreements will look like.

The courts in Virginia take addiction and the abuse of drugs and alcohol very seriously with respect to the safety of children. In these cases, the judge will rule on what they believe is in the child’s best interests, which may not align with the interests of a parent.

Substance Abuse & a Child’s Best Interests

When a judge evaluates what is in a child’s best interests in a custody or visitation matter, an analysis is conducted to evaluate how a set of factors are affected by a parent’s use of drugs or alcohol.

These factors include the following:

• The physical and mental condition of each parent
• The ability of each parent to assess and meet their child’s emotional, physical, and intellectual needs
• The willingness of each parent to participate in a close and continuing relationship with their child
• The role each parent has when it comes to the child’s care and upbringing
• Any other factors that the court might find relevant when it comes to deciding a custody or visitation matter

If one parent can successfully demonstrate to a judge that the other parent’s addiction or use of drugs and/or alcohol is detrimental to the welfare of their child, then it can be reasonably expected that the judge will make a decision with those variables in mind.

The risk to the parent accused of substance abuse involves losing custody and visitation rights, which can forever affect their ability to spend time with and parent their child as they see fit.

Child Custody During & After Drug or Alcohol Treatment

Addiction treatment programs usually run for around two months, which can mean spending a lot of time away from one’s child. Understandably, this tends to worry parents who are already concerned that their history with substance abuse will adversely affect the outcome of a custody matter.

If someone is currently in treatment for a drug or alcohol addiction, a judge may order a custody arrangement that places the child with their other parent or another relative capable of providing care while the first parent receives treatment.

It’s important to emphasize that these arrangements are usually temporary – that means a parent who successfully completes their treatment program and remains sober has a chance to regain custody or visitation rights. Again, however, these matters are solely decided based upon what the judge deems is in the child’s best interest.

Does the Type of Substance Abused Matter in a Child Custody Dispute?

It can, because some addictions expose a child to greater risk than others. For example, the courts are more likely to grant visitation rights to someone who is addicted to alcohol than they are to someone addicted to a “harder” drug, such as methamphetamine or heroin.

What about Marijuana?

Marijuana is legal to consume in Virginia for anyone who is at least 21 years old. Despite its legality, however, concerns about a parent’s recreational use of this drug can come up during a child custody dispute.

Chief among these concerns is the parent’s ability to provide care for their child. If a parent is constantly getting high, they might not be in the proper state of mind to ensure they are providing their child with a clean, safe, and loving home.

Other concerns include the child’s exposure to marijuana and use of the drug around a child. For example, a child can be distressed by their parent’s behavior while the parent is high – especially if the child requires something and the parent is unable to adequately respond.

There are also, of course, concerns about children themselves consuming marijuana products like edibles or using their parent’s paraphernalia to smoke or vape the drug.

What Should I Do If Addiction & Substance Abuse Is a Factor in My Child Custody Case?

If substance abuse and/or addiction to drugs or alcohol is relevant to your child custody dispute, the best thing to do right now is speak with a family law attorney.

If you are a parent concerned about the other’s parent’s behavior, we at The Law Offices of Daniel J. Miller can help you investigate your claim and argue for a safer custody and visitation agreement for your child. Likewise, parents who are falsely accused of substance abuse or are in recovery need advocates to help them fight for fair custody agreements – we can help them too!

For more information about how The Law Offices of Daniel J. Miller can help, contact us online!

Co-parenting children is tough enough during the rest of the year, but it can become especially difficult when the holidays come around. Thanksgiving and winter holidays like Christmas, Hanukah, and New Year’s Eve and Day are special times when lasting family memories are made.

When parents feel like they have to compete to create these memories, it can result in friction or strife that might put a noticeable damper on the season’s festivities. That’s why people who are co-parenting this time of year should prepare themselves and their children as much as possible.

5 Ways to Make Co-Parenting Easier This Holiday Season

If you are in a situation where you and someone else will have to share time with your child during the holidays, the tips below are a few ways you can make the process a little easier.

1. Talk to Your Children about the Holidays

One of the best ways to get through the holidays on a co-parenting schedule is to explain the situation as appropriately to your child as possible. If this is the first year that you and your child may not be together for a certain holiday, it’s important to reassure your child that you love them and that some families do holidays differently, like yours will this year.

It may be difficult to have this conversation with your child, but your primary goals should be to explain what they can expect in an age-appropriate way, reassure them that they’re loved, and do your best to lessen their anxiety about the situation – even if you’re feeling it yourself.

2. Make Plans with Your Child’s Other Parent

Your co-parenting plan probably already establishes how you and your child’s other parent will share time with your child during the holidays. If your plans for the holidays are less rigidly established, now is a good time to discuss with the other parent how splitting time with your child will work this year.

Your plan should include more than simply who gets to spend time with your child and when, though. You should have a detailed plan that specifies when one parent’s time with a child ends and when the other’s time begins, how the child will get from one home to the other, etc.

Whatever your plans end up being, write them down somewhere. Not only will this be a valuable document to refer to later, but it also establishes a paper trail that can be used to demonstrate whether or not your current co-parenting arrangements are working.

3. Split Time Evenly

Under most circumstances, each parent deserves to make happy holiday memories with their children. This means that each parent in a co-parenting situation should consider the child’s needs for an equal amount of time with their other parent.

Splitting time evenly each year can work out in different ways. If two parents live close to each other, it may be possible for a child to spend some time in each home during a holiday. Time can be evenly split during holidays with multiple days – Hanukkah, Christmas, and New Year’s – allowing a child to spend one or more full days in one parent’s home.

If parents live further away, alternating between fall holidays and winter holidays can lead to a more sensible time-sharing schedule.

4. Talk about Activities & Presents

The holiday season is the best time of the year for most children because they get to do all sorts of fun activities and get wonderful gifts from their parents. If you are co-parenting, you should discuss how you and the other parent will divide events and gifts with your child.

After all, a child might not like ice-skating the first time, so they may not want to go a second time with the other parent. Receiving a duplicate gift from another parent or relative can also put a damper on Christmas morning.

Parents should also avoid attempting to “out-do” each other, especially if their financial situations are very different. If there’s a “big gift” that each parent wants to give a child, the cost of it can be shared and the gift can be given together.

5. Focus More on Special Experiences

At the end of the day, the holidays aren’t special because of how much money is spent on a child – they’re special because of the experiences children have and the memories they make. If you manage to get through the holiday season doing nothing more than sharing family traditions and spending time with your child, you’re doing it right.

Plenty of fun activities can be done for little or no cost, either. Consider going on a walk or drive with your child to look at Christmas lights or spending a night watching holiday-themed movies. If your holiday plans involve cooking, share your skills with your child and make your special meal together.

Conclusion

Although co-parenting during the holidays can be hard, it doesn’t have to be painful. Depending upon your relationship with your child’s other parent, some of the tips above can help make this season go a lot more smoothly than you expected.

If the holidays seem unbearable because the other parent is difficult with adhering to a set schedule or seems to be driving your child away from you, it might be insightful to discuss these issues with an attorney. Our lawyer at The Law Offices of Daniel J. Miller can learn more about your situation and advise you of any legal options that make be available to you.

For more information or to schedule a consultation, contact us online.

As a parent, you want the best for your child. During custody disputes, parents are often unsure of where exactly their child will end up going to school, and how details such as the custodial parent's location will impact that decision.

Today, we're covering how Virginia handles custody and schooling, as well as tips for ensuring your child receives the education they deserve - and how doing so could help your co-parenting relationship.

To schedule a consultation with our team at the Law Offices of Daniel J. Miller for your case, contact us online or via phone at (757) 267-4949.

Where Will My Child Go to School in Virginia?

The type of custody arrangement you have will have a significant impact on where your child goes to school.

In sole custody arrangements, where one parent has total legal and physical custody of the child, that parent typically gets to decide where their child attends school. However, sole custody arrangements are fairly uncommon unless the court declares one parent unfit.

Primary physical and joint legal custody arrangements - wherein the child spends more time living with one parent than the other, but both have the right to make decisions for their child - are more common.

In many primary custody arrangements, the parent the child spends most of their time living with - the custodial parent - takes precedence when deciding where the child attends school, since they'll need a location they can get to easily. However, the noncustodial parent - whichever parent the child spends a minority of their time living with - will still get input, since they do have legal custody rights.

Some parents are engaged in a joint physical and legal custody arrangement, wherein the child spends roughly equal time with each parent. In these types arrangements, determining where a child "should" go to school can be challenging since each parent technically has an equal right to enroll their child in the school of their choice.

Typically, decisions concerning where a child attends school are either:

• Part of a parenting plan the parents draft themselves, if they can reach an agreement; or
• Left up to the discretion of the court and the judge presiding over the case, if the parents cannot agree on where their child should receive an education.

Either way, by the time your custody case is finalized and you receive your custody order, you should know where your child is going to school and have an arrangement in place for how you'll handle matters such as governing their education and exchanging custody.

What Should We Take Into Account When Choosing a School?

If you're working with your co-parent to decide where your child should attend school, you'll want to take the following considerations into account:

• Public or private? You and your spouse may have differing opinions on whether your child should obtain a public or private education. Matters such as income can play a big role in this decision, so make sure you're both on the same page.
• Does religion play a role? If you and your spouse have different preferences concerning your child's religious education, it could be a source of conflict. Try and collaborate to figure out something that works for both of you.
• Where will you be living? If possible, choosing a school that's close to you and your co-parent will make your lives a lot easier, especially if you have a flexible custody arrangement. Otherwise, consider prioritizing custody according to whichever parent will have the child on more school days/nights.
• Will you attend school events together? If so, again, choosing a school that's close to both of you will be advantageous. You'll also want to discuss how you'll approach events such as parent-teacher conferences if only one of you wants to go, or you'd both like to know a teacher's concerns but don't feel comfortable attending together.
• What are your boundaries for your child's education? For example, how much time do you expect them to spend on homework per day? What extracurriculars can they participate in? Reaching a mutual agreement on academic boundaries - and enforcing those boundaries - is crucial if you want an effective co-parenting experience.
• Is each parent in charge of different aspects of the child’s education? For some parents, dividing responsibilities – so, for example, one parent handles sports-related activities while the other supervises homework – works well. In other custody arrangements, parents may prefer to collaborate on all aspects of their child’s academic and extracurricular activities.

At the Law Offices of Daniel J. Miller, we'll help you navigate your child custody case, working with you to ensure you pursue the best outcome for your child and their future.

To schedule a consultation with our team or learn more about our services, contact us online or via phone at (757) 267-4949.