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.


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