Sunday, November 17, 2013

Sexual Abuse Allegations in Child Custody Disputes

Child custody disputes can be some of the most contentious, bitter, and difficult legal battles in family law. The issue of child custody is deeply personal and can touch on a number of additional issues, such as whether one parent is fit to care for the child on his or her own, whether the child will be safe in the home of one parent, and, in some cases, whether there are other factors, such as sexual abuse, that must be addressed by the court. In Virginia, child custody issues are generally determined by the family law court. However, allegations of sexual abuse by one parent against another may bring the issue of sexual abuse before other courts. It is important for Virginia parents to know the basics of how child custody issues are resolved, and how an allegation of sexual abuse may affect their custody rights.

Child Custody Disputes in Virginia

In general, under Virginia law both parents have equal rights to custody of a child unless there is a child custody order that mandates otherwise. Whether the parents of the child have been married or not, the general rule is that both parents should have equal access to the child, unless one parent files for a child custody order.

When one parent files for a child custody order, the court will look to many different factors in determining the final child custody order. The factors are meant to guide the court in determining the best interests of the child. Under Virginia law, the wants or needs of the parents are not meant to guide the court in determining child custody. Only the best interests of the child are a matter for the court to consider.

Code of Virginia 20-124.3 lists the factors that the court must consider. These factors include:

  • The relationship between the parent and the child;
  • The age and physical and mental condition of the child;
  • The age and physical and mental condition of each parent;
  • The role that each parent has played in the child’s life, and will play in the child’s life in the future;
  • The needs of the child, including the need to have relationships with other siblings, peers and other extended family members.

Again, these factors, and many others, will determine custody or visitation arrangements between the parents.

Child Custody and Sexual Abuse

Another factor that the court will consider in determining the best interests of the child under Code of Virginia 20-124.3 is whether there is a history of family abuse or sexual abuse. At the outset, if one parent makes allegations of sexual abuse against another parent, serious restrictions on custody or visitation may be ordered by the court after the child custody hearing.

Additionally, if one parent makes sexual abuse allegations against another parent, criminal charges against the parent may be filed. This means that the issue of the alleged sexual abuse will be before both the family law court and the criminal court. Thirdly, if one parent alleges sexual abuse by another parent, Child Protective Services may become involved. Child Protective Services may file a petition in the juvenile court if it believes that the child is now unsafe in the home.

Allegations of sexual abuse by one parent against another can severely affect the accused parent’s custody and visitation rights with the child, and may subject the parent to criminal prosecution. If you have been accused of sexually abusing your child during a pending child custody dispute, or if you have been criminally charged for sexual abuse of a child, you should immediately seek out an attorney.

Monday, November 11, 2013

Filing For Divorce in Virginia When Your Spouse Is In Jail

Many people are familiar with the stories of men and women falling in love while one is incarcerated. Incredibly, there are websites that exist for the sole purpose of facilitating relationships between prisoners and those on the outside. Yet it is far more common for relationships to end – rather than to begin – when someone goes to jail. A felony conviction and a lengthy jail sentence can be devastating to both the person convicted and that person’s spouse. When considering a divorce in Virginia due to an incarceration, there are several things you should know.

The Initial Requirement for a Divorce in Virginia

In order to get a divorce in Virginia, one must first meet Virginia's residency requirements. One spouse must be an actual resident and domiciliary of the state for at least six months prior to the commencement of divorce proceedings. Given the large presence of military members in Virginia, the law presumes that the members of the armed services meet this requirement if stationed in the Commonwealth for at least six months. Once one party meets this requirement, the rest of the divorce process will depend on the grounds on which a party is seeking a divorce.

Incarceration as Grounds for Divorce in Virginia

Normally, Virginia mandates a year-long waiting period prior to granting a divorce. Incarceration, however, is an exception to the waiting period. Under the Virginia Code, one can seek an immediate divorce if the plaintiff – the person seeking the divorce – can establish the following requirements:

  1. Either of the parties to the marriage has been convicted of a felony;
  2. This party was sentenced to confinement for more than one year, and;
  3. Cohabitation has not been resumed after knowledge of such confinement.

The grounds for the divorce – in this case the felony conviction – must have occurred after the parties were married. Likewise, the felon must actually be incarcerated for some period of time for the crime committed. If the felon was convicted, but immediately given probation instead of jail time, neither spouse can use incarceration as grounds for a divorce.

A divorce when one spouse is incarcerated at the time of the divorce requires an additional step. A court will not grant a divorce until it appoints an attorney for the incarcerated spouse. Known as a guardian ad litem, this attorney represents the prisoner’s interest in the divorce. Normally the spouse seeking the divorce will be required to pay for the guardian ad litem; however, this requirement will be waived if the crime involved physical injury, sexual assault, or sexual abuse against the spouse, child, or stepchild.

Many assume that spouses of inmates initiate divorce proceedings, but this is not always the case. Some inmates want a clean break during their incarceration or a fresh start upon release. If you are incarcerated and want a divorce, begin by speaking with your spouse. Because of your limited access to information and the outside world, an uncontested divorce – one in which you both agree to the divorce and its terms – will be much more simple than a contested divorce. Regardless of whether you and your spouse agree to the divorce, it is important to consult with an attorney.

Divorcing in Virginia can be lengthy and expensive. Likewise, the courts have broad discretion in awarding child custody, and child and spousal support. If you are considering a divorce in Virginia Beach, our experienced family law attorneys can help you navigate this complex process and get for you what you deserve.