Child support and child custody cases are very serious issues in a divorce. These orders are in place to help make sure that the best interests of the child are considered. Every parent knows how important it is to spend time with their children. When a Virginia court dictates how much time you are allowed, you want to take advantage of every second. What happens when the other parent does not listen, however? What happens when they continuously ignore the court order or custody agreement and refuse to let you see your child, or they exceed their allotted time?
That is where a family law attorney comes into the picture. A custody attorney at the law firm of Montagna Law can provide legal advice, help you through the complexities of parental rights and legal custody, guide you through the court process, and fight for your right to what the courts laid out in the custody arrangements.
The Commonwealth of Virginia has several levels of courts: circuit courts, district courts, and others. Under the Virginia code, the Juvenile and Domestic Relations District Court deals with child custody hearings and other issues of child-related family law in Virginia. Parents and attorneys file a petition requesting custody or visitation in the Court Service Unit. If an existing order is already in place that you wish to amend, you may file a Motion to Amend at the Clerk’s Office.
Virginia code defines a violation of a custody or visitation order as a situation in which a person knowingly or intentionally withholds a child from their parents or legal guardian in a clear violation of a court order.
Essentially, any significant behavior outside of the specifics of the order can be considered a violation, from one of the child’s parents taking the child to another state to failure to pay child support and refusing to allow visitation. If it is not in the best interests of the child, it may be a violation of the intent of the order. Some of the more specific and common violations include:
Any of these can require child support enforcement to correct. Make no mistake: violation of an order for custody of a child can result in criminal penalties.
An order for custody of a child can lay out specific rights for visitation. If the parent who has physical custody of a child refuses to allow the other parent to see the child during their scheduled time, this is a violation of the order.
Some of the worst violations of custody and visitation orders involve things that can be considered kidnapping. If you take the child somewhere and the other parent does not know about it, and you fail to inform the other parent where you took them, it can be a violation not only of Virginia law, but also of federal law.
Under the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA, a parent is not permitted to remove a child from their home state. Even if you do not leave state lines, taking a child on a trip where they might be out of contact with their other parent, and where you might miss a deadline to return them under the custody order, is not just a violation of custody, but it can also see law enforcement get involved.
Taking a child across state lines from their home state is not just a violation of custody; it is a crime under the UCCJEA. This is a federal law that permits law enforcement to get involved, and such a case may in some situations even be treated as kidnapping.
Sometimes, a child custody order is partially intended to protect a child from child abuse or domestic violence. In such cases, the abusive parent is rarely allowed to be around the child without supervision. Anytime the child is left with an individual that they are not authorized to leave the child with (either by the courts, the existing child custody determination, or the other parent), it can be a violation of the child custody order.
The Virginia state code states that anyone who “knowingly, wrongfully, and intentionally” engages in any behavior that clearly and significantly violates a custody order is guilty of a Class 3 misdemeanor, and that is just for the first offense. A second offense committed within 12 months of the first is a Class 2 misdemeanor, and a third offense within 24 months of the second is a Class 1 misdemeanor.
Even worse, the specific charge of taking a child out of state for the purpose of withholding the child from their parents or legal guardian in “clear and significant violation” of the court’s ordered custody or visitation is a Class 6 felony under Virginia law.
This means that violation of a visitation order by either parent or a legal guardian is a crime that carries criminal penalties. One way this can be enforced is if one parent files a motion with the court requiring the other to “show cause.” This means that a hearing will determine whether the other parent (the respondent) should be held in contempt of court for their violation.
If, for example, a visiting parent takes a child on a trip without notifying the parent who has physical custody, the visiting parent can be required to justify their actions and why they should not count as a violation.
What you should bring to a show cause hearing depends on the specific charges against you. It is vital in general to bring any evidence that the other parent is in violation of the order. This can be important even if you are the one being charged.
Gather any evidence you have of missed visitations or situations where the other parent refused to return the child. Keep records of all text messages, audio recordings, protective orders, and anything else that can prove that the other parent violated the agreement or order handed down by the court.
Your child custody attorney at Montagna Law is always here to help with representation, advice, and assistance when you have to appear at a show cause hearing. Call us today at 757-622-8100 or fill out our online contact form, and we will reach out to you for a consultation about your case.
In some cases, the police can get involved to enforce visitation orders. Law enforcement, however, is usually not involved unless a crime has occurred such as abuse, violence, or kidnapping.
Similarly, if a custody order requires a parent to drop the child off with the other parent at a specific time of day or on a certain day and they fail to do so, the police can step in to enforce the order. Usually, however, police are reluctant to get involved in child custody or civil matters, because their presence can sometimes escalate an already tense situation.
This does not mean you should not call the police. If you think your child is in danger, you should not take chances. Even if the police do not get involved right away, you can file a police report and get directed back to the courts. Sometimes having such a police report can help your case.
If you are not certain whether you should call the police, your attorney at Montagna Law may be able to offer some advice. You can always call us at 757-622-8100, or if you prefer, use our online contact form for a consultation.
The penalties for violating a custody order in Virginia are varied. They can range from fines to jail time, especially in the case of a parent committing a felony by removing a child from the home state. In any case, if you violate a visitation order, you can be subject to modification of the order, even losing your right to visitation altogether in the worst cases. If you have been accused of violating a protection order, it is vital that you contact a qualified family law attorney right away.
The experienced attorneys at Montagna Law have spent years representing families in divorce issues covering everything from spousal support orders to child custody, child support, and child visitation. If you are having difficulty getting your former spouse to live up to their responsibilities, or you are being accused of not living up to yours, we may be able to help. Call us today at 757-622-8100 or fill out our form online for a consultation with our legal team.
*The consult fee is $50 for up to ½ hr phone consults and $100 for up to 1 hr in-person consults. These consult fees are then applied to the retainer if the client retains us within 30 days of the initial consult.