Legal Question in Family Law in Virginia
Can joint non-custodial take custody back?
I have custody of a 9 year old biological son who's mother signed over custody to me when we divorced 6 years ago. She has never paid child support before. No that she may have to she would like to revisit custody and get him to live year on year off between us. I am not married and she is, so does she have a shot since she can provide him a better family environment? Mind you that when I deployed to Iraq she did not take him to live with her. He instead went to live with my mother (grandmother) who was 30 minutes away from her, citing that she couldn't handle him at the moment since she had a new baby. Can she argue that I am military and she is not? Thank you in advance for any advice.
3 Answers from Attorneys
Re: Can joint non-custodial take custody back?
The noncustodial parent in seeking custody of the subject child, can argue whatever she wants to argue for what she believes may favor her position.
The judge, however, in deciding the issue of custody, will base his or her decision on what is in the best interests of the subject child as determined by the nine criteria outlined in Va. Code Sec. 20-124.3, and
the parent whose particular situation with respect to the subject child is likely to best fullfill these particular criteria is the one who is likely to prevail in any particular contest for custody.
Re: Can joint non-custodial take custody back?
She can move for modification, though such will only occur if she can establish, to the satisfaction of the court, that there has been a substantial change of circumstances and that it is in the child's best interest to switch to her. The statutory factors will be applied in determining this. I advise that you contact an attorney to more fully consider how you might proceed in any such claim.
Re: Can joint non-custodial take custody back?
Despite whether she paid support (I assume she didn't because you never required it), bringing people back to court for things like support often gets them interested in filing motions of their own. She has parental rights so she always has standing to gain some kind of custody or visitation with her child. It is unclear whether you have sole custody or not, but her chances depend on whether she can successfully coparent with you.
I also don't know how close she lives to the child. You certainly can't coparent from more than 100 miles away. If she is worthy, competent and available she may get some form of visitation which should start small but may grow if she takes her parental duties seriously. The burden is on her since she walked away from it before.
Your military service should do nothing but help. No one dare penalize military service, and Virginia is a very military friendly state.
Good luck.
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