Legal Question in Family Law in Virginia
parental visitation rights
my brother's son lives in kansas with his mother,who has full cousty of him [he is 13 years old will be 14 in august 2007.his mom will not allow him to come to virginia this summer as she has been doing in the past two years,because he's not been getting along with his step-father and she thinks he needs to go to a behavior school this summer instead of visiting with his father. he loves his father very much!!! and he only gets to see him once a year in the summer. this child is heartbroken and so is his daddy. AT what age would he be able by law to make a decision on his own to live with his dad here in virginia? AND IS THERE ANY WAY
that the law would allow him to visit .what right does she have to do this?
he send monthly child support to her and always has.
in my thinking and his ,this is a way of making him suffer.she knows how the child wantsto be here wiyh his dad and she knows that this will hurt him ,not being able to have him come for a visit. my brother can not afford an attorney and we would appreiate any advise you can give us!!!!!!
3 Answers from Attorneys
Re: parental visitation rights
Your brother I assume is the child who wants to be with his father. He has no ability to ask for such visitation himself. His father must do it. She could not make choices like that unless there was no court order which covers summer visitation. If not, then he needs to get one and challenge her to defy a court order by not sending him. If she thinks he has special needs (like behavior school) she would then have to ask the judge to change the Order.
If the boy wants to live permanently with his father then his father has to challenge her for custody. A boy that age would have alot of say. The court would probably appoint a special lawyer for the boy (called a Guardian ad litem) who would have to advise the court of the boy's desires if the boy did not testify himself. But this also has to be done by the father. The custody and visitation rights would be his. I would agree with you that it is unfair to children of a certain age not to be able to make such motions themselves.
Good luck.
Re: parental visitation rights
Your brother either needs to establish
his right to visitation with his son by filing a petition with the appropriate court or he should seek to enforce an existing order if there be such. Assuming that there is no such order in Virginia, then the petition to establish your brother's visitation rights would need to be filed in the court which is designated to hear these kinds of matters in the city or county in Kansas where the boy currently resides. If there already is an order for visitation in Kansas, then that order must be enforced.
Until there is an enforceable court order in effect, the boy's mother will likely continue to do what she pleases
in regards to your brother's visitation issues.
Re: parental visitation rights
He should enforce any order of visitation that has been entered. Or, he may petition for a visitation schedule. As far as living with his father in total, a petition for modifying custody would have to be brought. This would require establishing a substantial change of circumstances since the first order, and that it was in the child's best interest to switch.
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