Guardian Ad Litem

babygrass

In child custody and visitation cases, the court often appoints a Guardian ad Litem. The Guardian ad Litem is an attorney whose role is to represent to the court what they believe is in the best interest of the child.

The Best Interest of the Child

In Virginia, the court always makes decisions about children by using the “best interest” standard. This standard includes several factors which must be considered. For example, when a GAL makes a recommendation about where a child should live, they must consider the child’s age and mental condition. An infant is going to have different needs than a teenager. Other factors include the physical and mental condition of each parent, the relationship between the child and each parent, each parent’s ability to work with the other parent, and any history of abuse. The full list of the factors considered can be found in the Code of Virginia.

How Does the GAL Determine What the Best Interest Is?

In order to determine what the best interest of the child is, the Guardian ad Litem must conduct an independent investigation into the case. This means that the GAL will usually schedule a home-visit with each party to see where the child would be spending their time while in that parent’s care. The main goals are to figure out what the child’s wishes are (if the child is an appropriate age), whether the current arrangement is working and is safe, and how the child is doing in general.

GALs typically will obtain medical records and report cards, and will often speak with teachers, counselors or daycare providers. This allows the GAL the opportunity to gather information about the child’s personality as well as their physical and mental state. Your child will probably be asked to meet with the GAL without the parents as well. This can take place in the GAL’s office or in the child’s home.

The GAL’s Role in Court

The GAL is an attorney in court, and can ask questions of either side. The GAL cannot be questioned by either side, and does not testify. Instead, the GAL provides a report that includes what their recommendation is, and what they discovered through their investigation. This report is sometimes written in advance and provided to the parties.

It is very often the case that the judge’s decision will align with the GAL’s recommendation. The attorneys at Commander Law know how to work side by side with the GALs to ensure that they fully understand the ins and outs of the case. We work tirelessly to make sure all of your concerns are heard so that the GAL’s recommendation takes into consideration all of the factors that are important to our clients.

 

What is a Nesting Agreement?

In a separation or divorce, maintaining as much stability and normalcy for children should be a priority. A great way to do that for parents who have the means is by reaching a nesting agreement. Nesting or bird nesting is when the children remain in the marital house, and the parents take turns living in the home with them. The visitation schedule will vary depending on the particular circumstances of the parties, with parents alternating every two weeks, weekly or with one coming for a weekend.

What are the benefits of a nesting agreement?

There are clear advantages to nesting. Divorce can be extremely devastating to children and being shuffled back and forth between one parent’s new apartment and their former home can add to the stress. In a nesting agreement, the children get to stay put and maintain their usual routine, familiar and comfortable surroundings and the stability of living in just one place. This often helps children to deal with the major changes going on around them. Nesting also allows the parents to secure a smaller second home or apartment since they don’t have to worry about having separate bedrooms for the children. Sometimes selling the marital home immediately would result in a financial loss to the parties, and being able to keep the home and continue to grow the equity can be beneficial to them later on.

What are the drawbacks of a nesting agreement?

Nesting isn’t for everyone, of course. Sometimes it is not financially feasible for both parents to get separate homes on top of maintaining the marital home. If the parents have issues with communication, then nesting can create even more issues because they need to work together to determine how the home must be maintained, which parent will pay the bills, which parent will be responsible for repairs and groceries, etc. A nesting agreement forces parents to interact more than they would if they both remained in their own home. Keeping the home can also cause the children to believe that the door is still open for the parents to reconcile.

Each family is different and the best way to determine what custody and visitation arrangement works best for your family is to discuss the pros and cons with an attorney at Commander Law. Together we can figure out what is best for your children and for you.

 

What are the types of Custody?

child custody

Legal Custody

Legal Custody refers to the ability to make important decisions on the child’s behalf. These decisions include choices about medical care, education, and religious beliefs. Joint legal custody is when both parents have the ability to make these types of decisions and therefore must discuss the possible choices and then they must agree on what decision to make. If only one parent has legal custody, then they do not have to consult with the other parent to reach a decision, and the other parent is not permitted to make these types of decisions at all.

Regardless of whether a parent has legal custody, they are still permitted to access their child’s school or medical records without consulting the other parent.

Physical Custody

Physical Custody refers to which parent the child lives with. In Virginia, when the child lives with one parent more than 90 full days a year, then the parents have shared physical custody. If one parent has the child for 90 or less full days a year, then the other parent has primary physical custody. The difference that this distinction makes is related to child support. There are two different formulas used to calculate child support, depending on whether the parents have shared physical custody or not.

We know that this can be confusing, and often we have clients who get confused trying to use the correct legal terminology to explain what they want. The easiest way to explain to your attorney what it is that you want is to simply explain what you would like the final arrangement to look like, without worrying about what the court will call it. Let your Commander Law attorney figure out what to call it, and make your focus figuring out what is the best arrangement for your child.

 

How to Prepare for Court

vbjdrAt Commander Law, we try our best to do everything possible to settle our cases outside of a courtroom. Of course, this isn’t always possible and many clients will find themselves unsure of what to expect or how to adequately prepare for their time in front of a judge. Each situation is different and your attorney can help you prepare for the particular facts of your case, but there are some things that any party in a court case should keep in mind.

Be on Time

Or better yet, be early. We have had countless cases that were able to reach an agreement in the hallway of the courthouse instead of having to subject the parties to a trial in front of a judge. This isn’t possible without you being there with plenty of time. If you are late and your case is called, then your first impression with the court is a bad one, and you also risk the judge putting the case on without you! This would mean that the opposing party can say whatever they want and ask for whatever they want without giving you the opportunity to defend yourself.

Be Respectful

The way you say things is just as important as what you say. Remain calm and take your time thinking about what you are going to say rather than reacting emotionally and letting the opposing counsel’s questions rattle you. Judges are watching each party carefully and observing body language and facial expressions as well as listening to tone. Do not roll your eyes, or raise your voice or use anything other than extremely professional language. Your demeanor should be respectful to everyone involved in the case. This also carries over into what you wear. Your appearance should be clean and professional to show respect to the court.

Answer Only What is Asked

Lawyers are trained to pull out the facts that help their particular case and often parties will waste the court’s time by going on unrelated tangents or over explanations on things that weren’t the direct subject of a question. If there is more information that needs to come out, there will be follow-up questions, so do not feel as though you need to lay everything on the table at the first opportunity you get to speak. Judges have to listen to countless cases every week, and do not have patience for people who do listen and provide considered responses and instead are dragging a trial out unnecessarily. Make sure you stick to the facts rather than the emotions or what you think should have occurred. Do not go into back stories unless prompted. And never speak unless you are certain it is your turn.

Listen to your Attorney

Commander Law is here to help you. We have years of experience and we are dedicated to getting you through this difficult period in your life. We will work tirelessly to fight for you, but the best case results happen when the client is committed to working with the attorney and trusting our judgment.

What about the dog?

commander law dog

This is an issue that comes up on occasion when negotiating the terms of a Separation Agreement. It may seem silly to people who don’t own a dog, but dog owners often are extremely emotionally attached to their pups and often feel similarly to them as they do about their children.

Virginia treats pets as personal property, no different than your favorite armchair. This means that pets are subject to the same rules regarding property and the court will consider whether the dog is marital property to be divided, or separate property that belongs only to one party. Obviously most dog parents will not want to simply sell the dog and split the proceeds to resolve the matter, which is why it is not unusual to have people ask if it is possible to enter into a visitation schedule for the dog!

The answer to that is Yes! As long as the parties agree, it is possible to specify a visitation schedule for a dog in a Separation Agreement. Other solutions treat the matter the same as they would determine where the children should live, and consider the best interest of the dog. Who is the dog most attached to? Who has more space for the dog to play and run around? Which party is the dog’s primary caregiver?

As with most divorce matters, the best solution is for the parties to negotiate and then agree to in a separation agreement rather than taking the issue in front of a judge.

Taxes

Posted January 30, 2018

Many people are concerned about the new tax law passed by Congress and signed by the President.

The changes will not impact your filing for the 2017 tax year. They will begin in 2018.

To see how the changes will affect you, contact a CPA or other tax professional.

Let Children Be Children

leo 2017

During a separation or divorce, it may be tempting for a parent to use a child as a sounding board, ally or confidante. Children also can be used as intermediaries to deliver messages or support payments between parents or as a means to gather information about the other parent’s activities.

Avoid the temptation! Placing children, even older children, in the middle of adult conflicts damages them.

Let children be children. Adult situations are for adults to handle.

The Unemployed or Underemployed Parent

Posted January 12, 2018

 

In Virginia, both parents have a duty to support their children. However, something that happens fairly often in child support cases is that one parent does not work or is underemployed. In situations like this, the Court can often consider the parent’s earning potential rather than their actual income. This is called “imputing income.” The Court will calculate child support as though the parent was earning at their potential level, with the idea being that the parent cannot get out of their duty of support by purposely not working or working only part-time. At the very least, minimum wage will be imputed to a parent who does not have a valid reason for their situation.

As with everything related to children, imputing income to the parent must be in the child’s best interest. Sometimes there do exist special circumstances, such as a child who has special needs and therefore requires extra attention. Situations like this may justify a parent working only part time or not at all. A situation that would not justify unemployment however,  is when a parent is terminated from a job for cause. It is not uncommon for a judge to impute the income that the parent was earning before they were terminated, regardless of whether they have obtained a new position yet.

The bottom line is that the parent asking for income to be imputed has to demonstrate two things: the other parent’s earning potential and that imputing income would be in the child’s best interest.

New Year! New You!

The beginning of a new year is the perfect time to consider your life and your options. It also is a time to prepare for the future.

Sometimes, you just need to get information or to have questions answered. At our law firm, we often see men and women who need information or clarification regarding family law issues. With our assistance, you are prepared to make the important decisions regarding your future.

You may decide that you do not wish to make any changes.

You may decide that you want to make small changes.

You may decide that you want to make BIG changes.

Whichever you choose, it should be the result of an informed decision.

At CommanderLaw, we are here to help you make these difficult decisions. Call us today at (757) 533-5400.