April 6, 2013

The Law Defined: Physical Custody

In a previous post, we briefly discussed the two types of child custody (legal and physical). Here, we will go into physical custody in-depth.

Physical custody is what it sounds like: the parent with whom the child resides. This arrangement means that the child's legal residence is with the parent whom the court has granted physical custody. It also means that the custodial parent has the responsibility to care for the child's immediate day-to-day needs, such as food, clothing, shelter, and entertainment.

Courts may grant sole or joint physical custody. In sole custody situations, the non-custodial parent is entitled to visitation rights, which can be worked out between the parties or set by the judge based on the best interests of the child. In a joint custody arrangement, the parents divide their time with the child more-or-less equally.

After the judge signs off on an agreement or rules on the merits, the custody arrangement is final unless there is a finding that a change in circumstances affecting the best interests of the child warrants a modification of the custody order. All custody orders automatically expire when the child turns 18 (can be extended to age 19 or graduation from high school, whichever comes first).

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

January 3, 2013

Clearing the Air: Losing Child Custody vs. Termination of Parental Rights (Virginia)

by Philip Yabut in adoption, child custody, child support, child visitation, termination of parental rights

A common misconception in family law is that loss of child custody amounts to a termination of parental rights. These are very different terms with very different legal consequences:

LOSS/LIMITATION OF CHILD CUSTODY: You lose the physical custody of your child (he/she lives with the other parent full time) and/or the ability to make decisions as to your child's daily care. However you still have the right to ask for visitation. You also maintain the right to challenge or change the custody determination at a later date. You legally still have a say in influencing your child's values, religion, schooling and healthcare, and your child can still automatically inherit from your estate or vice versa absent a will saying otherwise. And, most importantly, you maintain responsibility to support your child financially (i.e., you are not excused from child support!).

TERMINATION OF PARENTAL RIGHTS: You lose all of your rights over your child, and with it any right to be involved in your child's life. Effectively, you are no longer legally recognized as the parent, meaning you have absolutely no rights of visitation, and the child will no longer be able to inherit from you or vice versa absent a will saying otherwise. This also means you no longer have the responsibility to give the child any financial support.

The bar for court-ordered termination of parental rights is also much higher than a change in custody arrangements. For custody, a material change in circumstances for either or both parties is necessary. However, a complete termination can only arise from clear and convincing evidence of abuse and neglect.

While a parent can voluntarily give up custody rights, it is not possible to do the same for parental rights. That is, you cannot "sign over" your parental rights to the other parent. Only a court can terminate parental rights, and it will only do so if there is a third person ready to "take over" care and support for the child. A proceeding for termination of parental rights must start with a petition to the Juvenile and Domestic Relations Court, after which the judge will appoint a guardian ad litem for the child and the Department of Social Services will begin a thorough investigation.

Parental rights are also terminated as a matter of course in adoption cases. In cases of giving up a child for adoption to a non-relative, your family members also lose rights of visitation and inheritance.

Further information: Virginia Legal Aid Society: Termination of Parental Rights

January 12, 2012

Change a Judge Can Believe In

by Philip Yabut in child support, spousal support

National Park Service

To paraphrase the old philosopher Heraclitus, change is the only constant in the universe. Everything in nature is in continuous movement, and one never sees the exact same thing twice. You can go to the same spot overlooking the Grand Canyon a thousand times, but each visit is unique, a little (or a lot) different. No matter how similar it looks, if you examine your surroundings more closely, you'll find differences both obvious and subtle.

In family law, change is paramount in cases of child and spousal support. After the judge's initial support decree, the parties have two choices: live with it until it expires on its own, or try to amend it. Both the Virginia and District of Columbia codes provide for modification of support orders if the party asking for it can show a material change in circumstances. That change can be as major as a new (or loss of a) job, marriage, health problems -- or something as mundane as the passage of time. If you show the judge that things are different, you can get more (or be compelled to provide less) support for yourself or your children.

Support guidelines are generally mechanical in nature -- you both supply income and assets/liabilities information and, for the most part, the judge chooses the number that comes up. The judge has some leeway for extenuating circumstances like those I mentioned above. When you seek a support order modification, be sure to tell your attorney everything you can think of that can or actually does affect your financial status, no matter how mundane. Because even the smallest change can be significant.