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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Family Law
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I have a question of inappropriate behavior by my x wife and

Customer Question

I have a question of inappropriate behavior by my x wife and the harm she may be causing to my daughter. We have joint custody, my daughter stays with my x wife. My visitation rights are every Wednesday and every other weekend. My x wife has many things going on in her life, school , she works late and I take care of my daughter. I love taking care of her she is my only child. My x wife now has a boyfriend and he stays over the house with my daughter sleeping in the next room. My daughter is only 4 years old and it concerns me of the damage my x wife may cause. I tried to speak with my x wife, telling her I will take care of my daughter no questions, she can see her anytime. I am 56 years old married 2 times. My x wife married 4 times and has other older kids in college. Her other kids are good kid but all of them have had some trouble in there life's . I am aware of my age and my responsibility of raising my daughter. Sorry for all the history, but my question is , are there custody rules on appropriate behavior and is the behavior grounds to reverse custody.
Submitted: 4 years ago.
Category: Family Law
Expert:  S. Huband, Esq. replied 4 years ago.
Thank you for the opportunity to assist you! I am a Virginia licensed attorney, and I will do my best to provide guidance to you. If you find my response helpful, please rate it positively so that I can receive credit for my work.

Q) Are there custody rules on appropriate behavior and is the behavior grounds to reverse custody?

No, there are no rules per say in any statute (or case law) I am aware of which specify behavior rules and the like. I do not know of a per se prohibition on unmarried cohabitation and having custody of a child.

As in most states, in Virginia, we are guided by the "best interest of the child" standard for determining custody and visitation. Virginia Code 20-124.1 through 124.6 covers custody and visitation with minor children. You may wish to read code 20-124.2 for a general overview of custody and visitation issues which are considered by the courts.

Specifically, a judge uses the following factors located in Code 20-124.3 to determine custody and visitation:

In determining best interests of a child for purposes of determining custody or visitation arrangements ... the court shall consider the following

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination

The judge shall communicate to the parties the basis of the decision either orally or in writing. Except in cases of consent orders for custody and visitation, this communication shall set forth the judge's findings regarding the relevant factors set forth in this section.




Obviously factor #10 is a "catch all" to be used just in case the statute doesn't cover something.


In your case, and please correct me if I am perceiving your query incorrectly, it sounds like your concern is a moral one. You are concerned that the mother has a "live in" some of the time, i.e. the boyfriend. Since they are not married, you are concerned about the impression this gives your daughter. Also, the mother is going to school, works, etc. so she has less than adequate time to care for your daughter. Does this about sum it up?


If I were you, I would consult a family law attorney in your area to get legal advice about the local courts, their views on this type situation, and whether or not you have a reasonable chance at a change in your visitation schedule to include additional visitation, or even a change in custody. If you do not know of an attorney in your area, the Virginia State Bar attorney referral service may be able to help.


Many "old school" judges still follow the traditional view of mom having custody, but you may have a shot at changing that if you wish. I generally advise "dads" that it is a little harder uphill battle for a dad to get custody, but if you can show that you are better suited for additional visitation or for custody outright, you should try. Your lawyer will have to take all the facts you give him or her and formulate a plan to try and change visitation and/or custody.


One thing that will help; make a list of all the specific things that bother you. The live in, mom has school three nights a week, the child is with you now more than she is with mom anyway, etc. etc. Be specific. EVERYTHING that bothers you. Take this list with you to talk to an attorney.


I hope this helps you. I wish you the very best with this legal situation. Take care,


Expert:  S. Huband, Esq. replied 4 years ago.
Hello again,

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Thank you for your consideration, and I hope to be able to help you again in the future.