Legal Question in Family Law in Virginia

Re: Marital separation agreement

You should consult with a Virginia lawyer to determine the applicability of the law to the facts of your particular case. The following is general legal information concerning when a juvenile court may be divested of jurisdiction and whether a property settlement agreement controls custody in Virginia.

In Virginia, both the Circuit Court and the Juvenile and Domestic Relations Court may hear and decide child custody, support and visitation cases. Three things are necessary to divest the Juvenile and Domestic Relations Court of the power to hear a child custody case.

��(1)when a suit for divorce has been filed in a circuit court, (2) in which the custody, guardianship, visitation or support of children of the parties or spousal support is raised by the pleadings and (3) a hearing, including a pendente lite hearing, is set by the circuit court on any such issue for a date certain or on a motions docket to be heard within 21 days of the filing, the juvenile and domestic relations district courts shall be divested of the right to enter any further decrees or orders to determine custody, guardianship, visitation or support when raised for such hearing and such matters shall be determined by the circuit court unless both parties agreed to a referral to the juvenile court.� Virginia Code � 16.1-244. (parentheses and numbers 1,2,3 added)

In Virginia, the guiding principle in child custody and visitation cases is the best interests of the child, regardless of any contract between the parties. Consequently, a court will not be bound by a property settlement agreement and can make whatever custody and visitation arrangements that serve the best interests of the child.

The same legal principle controls the issue of the appointment of a guardian for a minor in a will. You can specify whom you wish to serve as a guardian, but you cannot control that process if it is challenged in court because children are not personal property whose custody or guardianship can be determined by a contract.

Re: Marital separation agreement

If the Court has to decide the custody issue, it will consider many factors in determining what is in the best interest of the children; among them is the desire of the older daughter and the apparent belief by the parties that you are the more appropriate custodial parent, as evidenced by the agreement.

If there is an agreed custody order, the refusal of the older daughter may still bear on the case because of her age; that would in turn bear on the custody of the younger daughter, since it may be inappropriate to separate the children.

If custody is an issue for the court to decide, the first step the court takes will be to require the parents to attempt to mediate the custody issue, at least with one mediation session, as you may already have found out.

Custody matters are important, and what will work best for the children should be the approach both parents take.