This must have been a VERY stressful situation for you. I am sorry that you have had to deal with the father of your son while you were trying to deal with your son's critical illness. I hope that he is doing better.
Virginia law § 20-124.1. Definitions; states:
"Joint custody" means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child's primary residence may be with only one parent.
If he did not tell you about your son's illness and blocked you from seeing your son, then he is in violation of the custody Order that is enforceable by the Court.
If you have a visitation Order in place that allows you to see your son on certain days, weekends, etc. at your home, then that Order is enforceable UNLESS it is changed by the Court. He CANNOT just deny you visitation or make you have only supervised visitation where he lives. Unless that is what the court Order says, he is also in violation of the visitation Order.
You ABSOLUTELY need to file a Show Cause
as to why the father should not be held in contempt of court for his failure to comply with the custody and visitation order.
The burden of proof
will rest on you to show that the respondent failed in some regard to comply with a valid court order. Although there do not appear to be any Virginia appellate
cases that definitively establish the requisite burden of proof, the U.S. Court of Appeals for the Fourth Circuit has held that the moving party (you) must prove noncompliance by clear and convincing evidence, and that willfulness is not an element.
Whatever the burden of proof may be, it is clear that once the disobedience—for example, failure to pay support—is proved, the burden then shifts to the obligor to provide justification for his noncompliance with the order of the court.
He will have an opportunity to provide a defense. But.....so long as the custody and visitation in order that you posted is in place, it is clear that he is in violation.
When a Motion to Show Cause for Contempt of Court is filed for an alleged violation of a court order concerning child custody, visitation or support, the contempt may either be charged as CIVIL or CRIMINAL.
The petitioner must state whether he or she is asking for a criminal or a civil contempt proceeding. The motion for show cause must state whether criminal or civil contempt is sought and include the relevant section of the Va. Code.
If CRIMINAL contempt is sought for a violation of a court order, the sections of the 1950 Code of Virginia that are relevant are:
- §18.2-456 which allows a sentence of up to 10 days incarceration if the person charged is found guilty; OR
- §16.1-278.16, which allows a sentence of up to 12 months incarceration if the person charged is found guilty.
If CIVIL contempt is sought for a violation of a court order §16.1-292 allows for a disposition that might include incarceration until the contempt is purged (for example the support arrearage or a portion of it is paid or the child returned to the lawful custodian, or as ordered in each particular case). In this court the time that a person can be held in jail cannot exceed 12 months on a finding of guilt of contempt.
Definitions And Descriptions
- Contempt Defined (Common Law): An act in disrespect of the court or its processes; or which obstructs the administration of justice; or which tends to bring the court into disrepute. It includes any act which is calculated to embarrass, hinder or obstruct the court in the discharge of its responsibilities.
- Categories of Contempt
- Criminal Contempt: A criminal proceeding intended to punish a person for an act or omission that has already occurred. Prosecuted in the name of the Commonwealth, it is punitive in nature, and many of the usual protections of a criminal proceeding apply (such as written notice of charges; compulsory process; proof beyond a reasonable doubt; assistance of counsel).
Punishment is usually in the form of a fixed fine and/or fixed jail sentence, and the contemnor has not power to change the punishment, i.e. "purge" the contempt. The jail sentence, if given, is for a definite period of time.
- Civil Contempt: A civil proceeding intended to enforce the rights of private parties or compel a person to comply with a prior order of the court (such as a support order; an order to turn over property, etc.). It is remedial and coercive, rather than punitive, is usually initiated by the party in whose favor the order runs, and does not require the protections of a criminal proceeding.
Punishment is usually conditional. That is, a growing fine and/or indefinite jail sentence until the person purges the contempt, i.e., by complying with the court's order. Civil contemnors "carry the keys of the prison in their own pockets."http://www.courts.state.va.us/courts/jdr/Lynchburg/show.html
It is important that you file a Petition for Show Cause IMMEDIATELY, before the father files a Petition to modify the visitation order so that you may only have supervised visitation in Virginia.
The Original Petition for Show Cause must be filed with the court. You must send the father a copy by regular mail. Then, you must file a Proof of Service (available at the court) that tells the court how you served the father (by regular mail.) If you get a court date on the spot, you can include that in the proof of service. Otherwise, the court may send you and the father a court date.
You may wish to consult an attorney who specializes in family law in Virginia. Sometimes, a telephone consultation is free or at a minimal charge. You can discuss the specific facts of your case, evaluate your options and decide how to proceed. You can decide if you need to hire an attorney, or whether you are eligible for legal aid, or whether you can do it on your own.
I hope you find this information useful. Good luck.
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