You’ve talked it over, gone through marriage therapy, and made the difficult decision to separate. There are children in the picture. What happens now?
The first thing I ask people in this situation is Are you safe? Are your kids safe?
This is of paramount importance. If you genuinely feel you or your children are in danger, leave immediately. Get yourself and your children to a place of safety—a relative’s home, a friend’s house, or a shelter.
Once you are sure of your safety, we can begin the separation process.
The commonwealth of Virginia usually requires a twelve month separation period if children are involved. You and your spouse must live apart during this time—no co-sleeping, no sex, nothing that would indicate an intent to stay together. (If you can’t afford to do this, a same-home separation period is possible.)
After the separation period, your assets will need to be divided. You and your spouse can do this through a separation agreement or the court can write an Equitable Distribution of Assets (EDA) after a hearing. I will leave the details of what goes into an EDA for another post. Today, I want to focus on custody.
Contested custody is an emotional undertaking
People in the middle of a custody battle are under a lot of stress, but many can’t see this—they understandably are focused on their own hurt. As an advocate, I advise people to put emotions aside as best as they can. First, it can damage their relationship with their children. Second, it compromises their legal case. Finally, absent abandonment or a severance of parental rights, you will be co-parenting with the person at the other table, at least until your children turn eighteen. Poisoning this well will only make raising your children harder.
Based on my experience with custody fights, here are four rules to follow during a custody contest:
- Do speak and act in the best interest of the child.
As I mentioned, you may be wrapped up in your own emotional space. However, the court is only interested in what’s good for the child or children. Avoid talking about what you want or need. Is it in your children’s best interest? If not, it’s a secondary concern, at least where custody is concerned.
- Do not alienate the other parent.
In the courts, we describe attempts to influence children against a parent as “alienation.” Some examples:
- Not allowing your spouse to see the children
- Not allowing contact (for example, by phone or text)
- Bad-mouthing your spouse to the kids
Parents can also create situations where the other spouse has less opportunity to see or interact with the children—for example, not telling them about school events.
The one exception to rule #2 is if there are safety concerns. If drugs, mental illness, or abuse is in the picture, you may have to take steps to keep you and your children safe from harm.
- Do talk, text, email, and use social media as if you’re in front of the judge.
I know this is hard, especially when one is in a highly emotional situation, but it’s like the Miranda warning says: “Everything you say can and will be used against you.” Try not to get emotional. Beware of accusations. Support the other parent. This is in the best interest of your children (see rule #1). It goes without saying that making your children pick sides is not fair to them. The courts view someone who acts as an antagonistic spouse as, to be blunt, a bad parent.
- Do not make unilateral decisions regarding your children.
During this period (and even afterward), avoid making decisions about your children’s education and activities without speaking with your spouse. Medical decisions especially should be made by mutual consent. Acting without consulting the other parent is looked upon as antagonizing the situation.
There are a lot of myths and assumptions floating around regarding custody and child support. Do not take the advice of your friends and relatives, no matter how well meaning. Laws change, and they also vary from state to state. If you are in the throes of a separation, you will be emotional. Don’t go it alone. You need an advocate and you need counsel, and the best advice is the one you pay for. I am one of the Roanoke family law attorneys that offers a free 30-minute consultation. It’s my goal to help you navigate a difficult time so you can help your children do the same.
