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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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Aside from a request for modification of child support, my

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Aside from a request for modification of child support, my ex husband has filled a motion for modification to our custody order. The current custody order is joint custody, with his father having physical custody. He filed this motion exactly 2 weeks following
being found in contempt of our visitation order on 3 separate issues. There has been no changes in circumstances. After the show cause, and his being found in contempt, I conceded the discipline piece as a sign of good faith as it had been a hot button issue,
and to reduce the amount of friction our son was exposed to. In the motion to amend, he states that he would like: Father sole custody and sole physical custody or Father be awarded tie breaker when Father and Mother cannot reach an agreement on medical and
educational issues. He stated as to what had changed since last order: Mother wishes for Father to take lead role in decisions concerning Andrew. In essence, he got his hand slapped for making unilateral decisions with our son, and has used my concession to
reduce the stress on our son to attempt to say I do not wish to be involved in making decisions in his interests. A guardian ad litem has been placed on our case. My question is: although he has filed this motion, since he has opened the door for custody,
and what would be in our son's best interest, am I able to counter and request for custody as well? I had not raised the custody issue due to the change in circumstance piece. I am getting married on 07/09/2013, however due to the fact that it will be in Washington
DC, and it is a same sex marriage, Virginia does not recognize that marriage, even though the federal government now does, otherwise I could use that as a change in circumstance. Could I use the fact that he was held in contempt as a change in circumstance
since the last order against him? Should I still press the issue that I am indeed married and there is a 2 parent home versus a single parent home, as my wife has been in our son's life for 4 1/2 years, and although my ex husband HATES the lesbian issue, he
has never raised a motion about it in 4 trips before the judge? Also, we are by far more financially stable than he is. We have found disturbing issues with his bank records due to the modification of child support piece. (He is self-employed). What are my
rights besides just status quo? My son is not better off in his care. He is there only because of the fear my ex husband placed on me at the time of our divorce, bullying me to give him custody at the fear of losing my son due to my lifestyle change. My attorney
isn't giving me a whole lot of guidance, however I am already very deep fee wise into him, and the cost of switching attorneys now would be astronomical. I feel like I have done the majority of research myself, and have been arguing with him to push to get
certain documentation, and to go in the direction that to me seems most logical, and also in line with the advice I have gotten from the attorneys here. So, bot***** *****ne, can I get with the GAL and give them evidence and counter sue for custody even though
I did not file the motion to amend custody, and can I use his being found in contempt as a change in circumstances as a reason to amend, and should I peruse the marriage issue as a change in circumstance?
In some states, it is very difficult to meet the burden of showing that a custody order should be changed. In Virginia, however, any change in circumstances can be used to reassess a child's best interests at any time. A two parent household could be a benefit to a child, however, given the fact that Virginia is generally a homophobic state, your judge may look negatively on the fact that you are living in a lesbian relationship. His being found in contempt could definitely be a basis for a change, and yes, you can counter sue for a change in primary custody. There is no saying what the guardian ad litem will recommend, but if you have asked for custody, the GAL can consider that as an option. You will basically have to show how the totality of the circumstances justify a change in your child's best interests.
In determining a child's best interests, the Court considers these factors:
1) age and physical and mental condition of the child, considering his or her developmental needs
2) The age and physical and mental condition of each parent or person with a legitimate interest in child custody or visitation
3) The existing relationship between the child and each parent and the parents' ability to accurately assess and meet the emotional, intellectual and physical needs of the child
4) The needs of the child, considering important relationships with siblings, family members and peers
5) Each parent's past and future roles in the upbringing and care of the child
6) Each parent's willingness to actively support the child's relationship with the other parent, including any past unreasonable interference with access or visitation
7) Each parent's willingness and ability to maintain a close relationship with the child and to cooperate with the other parent in decisions and disputes affecting the child
8) The preference of the child if the child is of reasonable age, intelligence, understanding and experience to express a reasonable preference
9) Any history of family or sexual abuse
Number six above shows why his acts of contempt could be a significant change in circumstances.
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