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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12620
Experience:  Attorney experienced in all aspects of family law
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I have primary physical custody of my children and their mother

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I have primary physical custody of my children and their mother and I share legal custody. Lately, their mother has been asking for additional visitation time with the children. I don't think giving her some additional time is a bad idea for now, but the mother has had a long history of an unstable lifestyle (work, relationships, etc). My biggest fear is jeopardizing my hand with custody. If I give her more time than what the court order states and see how it goes with the mother, is there much chance for the mother to take me back to court after establishing additional time to have the custody order changed to joint custody?

Brandon M. : Hello there.
Customer: hi
Brandon M. : Thank you for your question. I should start by clarifying that because the nuances of every case are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, the first comment I would make is that there is no rule in Virginia that allowing a parent visitation in excess of what has been ordered by the court will automatically equate to a custody order matching the change. So it's not written in stone that giving extra time will mean a change the order later...
Brandon M. : Hi. Welcome :-)
Brandon M. : Child custody is ordered based on the best interests of the child, and that is true regardless of what the actual visitation schedule has looked like...
Brandon M. : However, the reality is that (1) kids need stability, so an established custody arrangement is oftentimes "best" for the kids simply because it is what they're use to following...
Customer: The mother has made some positive changes in her life with housing, child support (about $600 behind) and re-marrying with who seems like a descent guy
Brandon M. : and (2) it's oftentimes difficult to argue against changing a custody order to match an actual custody/visitation schedule because if it wasn't for the kids' best, XXXXX XXXXX the parent allow for it in the first place?...
Brandon M. : It's actually really great that you can recognize that. Oftentimes, we see people through a filter that (for better or worse) taints our perception of their decisions. Good for you, for being able to see that she has made positive changes.
Customer: so in the part (2) of your response - you are discouraging a change in the visitation schedule?
Brandon M. : I'm telling you to do whatever is best for your children, but I will say that when I have a client that wants to increase their custody/visitation time, I always try to get the other parent to informally increase custody/visitation before going to the court.
Brandon M. : Getting the change informally definitely strengthens the argument for getting the change by order of the court.
Customer: At the time of our custody hearing in court - she was a pretty awful mother - so I pressed the court with evidence that the children would be better suited to live with me -- but times and people do change -- i don't want to appear inconsistent should we go to court again
Brandon M. : That makes sense. Let me offer this information: when I have a father (for example) who is considering giving more custody/visitation time to the mother of his child, I will usually suggest giving it up if something is received in return. For example, maybe mom gets an extra overnight per week, but dad gets an extra week of vacation in the summer that he can exercise at his discretion. Or mom gets an extra overnight per week, but dad gets to put the kids in ballet instead of football... you get the idea.
Customer: Yes - that does make more sense.
Customer: that way we are both exercising the same effect
Brandon M. : Precisely. And everyone gets something that they want.
Brandon M. : I hope that this information has been helpful. Did you have any other question?
Customer: I am searching...
Customer: would it be ok to informally make that change or should it be official?
Customer: i am going to consult my own attorney but this has been bugging my mind
Customer: I just don't want the rug pulled out from under me later on should we go to court again
Brandon M. : Well, an official change is official, so it is a lot harder to undo and it is enforceable. It really depends on how committed you are to the change.
Customer: I understand. She has been threatening me to take me back to court of this issue to seek additional time. I've always heard once a custody order has been established its very difficult to have it modified in such a way to change the custody part - which is why i argued hard in the first place. I feel like I've done a good job as the custodial parent with keeping her involved and informed with the children's school, sports and doctor appointments. She really just wants me to "agree to this" and not seek the children's counselors suggestions. When you said you suggest your clients to get an informal approval it made me wonder if she is being told the same thing by her attorney if she has one.
Customer: Would you agree that it's tuff to change the custody order with the custodial parent doing "things" well?
Brandon M. : It can be, but it really depends on the circumstances.
Brandon M. : But if you have a situation where you give mom some extra time informally and no new problems crop up, that's a pretty compelling argument to give her more custody time.
Brandon M. : Kids have different needs at different times, so the custodial parent may be doing everything right but the kids need more time with the other parent anyway simply because their developmental needs change as they get older. For example, kids in their pre-teens and teens tend to need more contact with their same-gendered parent.
Brandon M. : But obviously, if things are working well under the existing arrangement, the court will be disinclined to rock the boat.
Customer: OK. But in the end, even if she had my approval on some extra time, the court would only be inclined to make an offcial change in visitation time -- not like there is a need for change in custody (sole, joint) - correct?
Brandon M. : Correct.
Brandon M. : A change in visitation time does not necessitate a fundamental change in custodial rights.
Customer: OK - thanks for your suggestions
Customer: one more thing and i'll be done
Brandon M. : Sure.
Brandon M. : If I may, I would just like to confirm first that everything has been satisfactory... if there has been any deficiency, I would just like to address that deficiency before we conclude. Naturally, if everything has been to your satisfaction, you don't have to try to find something wrong with my service :-)
Customer: the order specifically states in the end "and at all other times as agreed between the parents" - in the custody/visitation section of the order
Customer: yes, satisfied
Brandon M. : Thanks. Please continue.
Customer: the order specifically states in the end "and at all other times as agreed between the parents" - in the custody/visitation section of the order
Customer: it seems that the judge placed an "open" statement for additional visitation time in the future should the request arrise
Customer: with that statement in the order like that - it would seem to me that there wouldn't be much repercussion to suffer should i give mom some extra time -- or maybe this was meant to be for the occasional times and not so much a regular visitation change?
Brandon M. : I understand, and that is an intelligent question. "all other times as agreed" clauses give the parents flexibility, but a custody order can be modified at any time as long as it is in the children's best interests. So the court could certainly change the underlying order once the parties cease to agree to an informal change.
Customer: would you interpret that to include regular recurring visitation changes or just changes here and there?
Brandon M. : I first have to make a disclaimer: it is technically impossible to interpret one clause of an order without examining the entire document or the context of the document. It is like showing you a picture of an elephant trunk and asking you to identify to what animal it belongs--you could say with great confidence that it is probably a trunk of an elephant, but without examining the animal to which it is attached you could not say for certain. So, please understand that my answer is not based on complete information and it therefore is potentially incomplete and it should not be relied upon as complete or advice without consulting in person with counsel. That said, I see nothing in the clause that limits the order to occasional changes. Taken at it's face value, it would seem to be without limitation.
Customer: i understand and i have naturally agreed with you prior to this conversation
Customer: thanks for your help and will give you excellent service
Brandon M. : Great. I appreciate that. Did you have any other question?
Customer: No.
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