If there are no custody orders in place, the parents are in a gray area - they are expected to work parenting out themselves, but one can keep the child away from the other as well. As you can imagine, this often creates confusion and argument, so this is why many opt to file for formal custody orders.
Either parent can file for custody. The Court decides on custody based on the rule of thumb of "best interest of the child
." Logan v. FAIRFAX COUNTY DEPT. OF HUM. DEV., 409 SE 2d 460 - Va: Court of Appeals 1991
. The factors for these are outlined in VA § 20-124.3
and are: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.
One parent usually becomes the custodian and the other parent becomes the "visiting" parent which is generally one day a week, every other weekend, and alternating holidays. The nuanced points of the custody can either be decided by the parties or the Court, if the parties cannot come to an agreement.
Even if a parent does not get managing custody, they are almost guaranteed visitation unless they have a drug problem, alcohol dependency, or an unsafe home environment. Abuse and or neglect of the child or previous children are an almost automatic bar for even visitation, although supervised visitation
may be granted by the Court.
Of course, that is the standard order of possession. That order can be modified if both parties agree or if the Court finds that it is an extraordinary situation. For a minor child, the visitation begins little by little and expands. If there is someone in the home who can cause the child harm, the Court may rule that visitation be executed outside the home (if at all).Is there any way he can be required to be tested for mental competence or be required to go through some sort of elevation?
YES. Either party may request that the Court order both parties to undergo psychological and parenting review and/or training as part of the Court's consideration.So my main question is since they are not married and he lives 1.5 hours away does my sister have to bring the baby to visit her ex?Until/unless there are court orders in place
, then NO. Also, if there are any set, it is typical that the visiting parent arranges transportation.Does she have to answer all of his calls?
NO.Which at times she feels like he is harassing her. Can she ask him to leave her alone since she has stated that he abandoned her and their son?
YES.Is there anyway to have testing done to prove he is not able to take care of a child?
Yes, but this would have to be done as part of an overall custody petition. See above.What legally is she required to do?
At this point, nothing at all. However, he may continue to press for informal custody, and sooner or later either he or she is likely to turn to the Court to have this matter handled officially.
If she goes to the Court, an attorney is recommended. May I recommend the Virginia Bar referral program - here
. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.
I hope this helps and clarifies. Good luck.
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