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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 87528
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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VA FAMILY LAW QUESTION. My sister and her boyfriend of 7 years

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VA FAMILY LAW QUESTION. My sister and her boyfriend of 7 years have a 1 ½ year old son together. He has moved out of the house that was in her and my parent’s name. So he told her they were no longer together. So now they are dealing with making arrangements on how to share their son. However, since they are not married and he is not providing for the child I needed to know legally what my sister has to do.

She does not want to give him overnight visitation because she feels like the place where he is not living (his mothers) is not fit for a child. Also, his father is a pedophile so my sister is not wanting to let him have the baby until he can speak and tell her what is going on.

Also, she feels that he is not a fit parent and has no clue on how to care for a small child. Is there any way he can be required to be tested for mental competence or be required to go through some sort of elevation?

He has no job and has been on unemployment and will soon run out of that. So the money he has been giving her will no longer be there in a few months. Also, MY sister lives 1.5 hours away from where her ex/bf is now staying and she has invited him to visit his son where he lives but he wants her to bring his son to him to visit. 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? Does she have to answer all of his calls? 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? Is there anyway to have testing done to prove he is not able to take care of a child? What legally is she required to do?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your sister's situation. Can you please tell me:

1) Has either party filed in Court yet?
2) Are there any court orders per custody in place, or not yet?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

1. No one has gone to court or done anything legally yet. My sister is unsure if she should be the first one to make the first move. Also, it is important to know she has been the parent who has been with the child everyday since birth and give care to the child.


 


2. No court orders per custody as of yet. She would really love to have sole custody but I don't think there is such a thing unless he is in jail or can be proved of dealing drugs or something like that.

Expert:  Ely replied 1 year ago.
Thank you.

OVERVIEW
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.

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.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

Is she required to let him have overnight visitation if she feels unsafe and would like to hold off on that till the child is of speaking age?

Expert:  Ely replied 1 year ago.
Thank you for your follow up, M.

Is she required to let him have overnight visitation if she feels unsafe and would like to hold off on that till the child is of speaking age?

She has no requirement whatsoever now.

If the parties end up in Court and the Court renders custody orders, it would be at the Judge's discretion as to the overnight matter. If she speaks up and makes this an issue, the Judge is VERY LIKELY to disallow overnight visitation, disallow the questionable individual to be there if there is visitation, disallow visitation all-together, allow supervised visitation, etc. So it is at the Judge's discretion.

But UNTIL/UNLESS there are court orders, she does not have to do anything at all - including providing visitation (overnight or non).

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

how many phone calls are considered harassment?

Expert:  Ely replied 1 year ago.
M,

Thank you for your follow up. There is no "definite number" of calls that qualify as harassment. It is on a case by case basis. A restraining order MAY be requested. See here. Suffice it to say, numerous calls IN QUICK PROGRESSION and/or simply constant calls throughout the day may qualify.

Alternatively, a restraining order may also be requested as part of a custody matter, if necessary.

Often, the threat of filing a restraining order will have the other party back down, fearing litigation.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

If my sister decides to text him saying that legally she does not have to text or provide visitation to him will that show poorly on her if she does go to court?

Expert:  Ely replied 1 year ago.
It is best to avoid TEXT because that can be taken out of context. So while it would not reflect "poorly" per se, it can be taken out of context. A LETTER stating the same thing may be more formal, and better for future review by the Judge, etc. Let me know if you need a sample letter.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

yes can you send me a sample letter?

Expert:  Ely replied 1 year ago.
By all means.

Dear __________,

Demand is hereby made that you stop constantly calling and otherwise harassing me via telephone, email, text, and other means. If this does end immediately upon your receipt of this certified letter, I may have no choice but to request a PROTECTIVE ORDER from the Court and/or to file a criminal charge for harassment.

In addition, please note that until/unless custody orders are in place, I am under no obligation to allow visitation with (child's name), and none shall be forthcoming until I am personally satisfied that the child shall be 100% safe in your care.

Sincerely,

Signature

Name


Of course, a letter from an attorney is best because this holds more "gravitas."

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 87528
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 4 other Family Law Specialists are ready to help you

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