The holiday season is perhaps the most difficult time of year for clients going through a divorce (or even those who have previously gone through one), especially if the client has a minor child or children.   Like clockwork, as the major holidays come and go, so too does the barrage of phone calls to my office regarding the holiday visitation schedule.  During this sometimes already stressful time of year, disputes over the holiday visitation schedule are often what put domestic clients over the edge.

So what can a domestic client do to lessen the stress associated with the holiday season (at least from the perspective of the holiday schedule)?  Here are a few tried and true suggestions: 

1.         Negotiate a thorough, detailed schedule at the beginning.  Often, clients are in a rush to negotiate and sign their Settlement Agreement or initial Court Order, and, in so doing, they skim over important details such as what time holiday exchanges are to occur or where holiday exchanges should take place.  Some clients are so eager to complete these documents (or are so convinced that they will maintain a good “working” relationship with their soon-to-be-ex) that they resort to the almost always fatal “the parties shall equally divide the holidays on an annual basis pursuant to a mutually agreeable schedule” (or some variation thereof).   While I have had clients who are able to work out the schedule by themselves year after year, unfortunately, most parents are not able to do this.  As a result, from my perspective, it is almost always advisable for a client to start out with a detailed, default schedule that the parties can then agree to vary from, rather than to agree to a loosey-goosey schedule (or none at all).      

2.         Discuss annual holiday plans early and often and put any deviations in writing.  If you are one of those clients who have the “divide the holidays as the parties mutually agree” language, or if you and the other parent simply wish to deviate from your written schedule, the most important things to do are to start discussing the holiday schedule early and to put any deviations in writing.  By commencing the “negotiations” early, any disagreements are more likely to be worked out before the holiday actually arrives.  Further, putting the outcome of any discussions in writing (email is really great for this!) reduces the likelihood that you’ll drive to Virginia Center Commons at 5:00 p.m. on Christmas Day to exchange little Johnny only to be met by an empty parking lot.

3.         If the schedule truly isn’t working, take legal steps to have it changed.  If, each year, the schedule in your existing Settlement Agreement or Court Order causes screaming and/or crying, it may be time to meet with a domestic attorney to investigate having the schedule modified.  After all, your children (and you) deserve to have happy holidays!    

     Child custody is the most difficult issue in a divorce. A variety of combinations exist to protect the best interests of the child. If the mother or father cannot agree on a custody arrangement, a judge will decide what is in the child’s best interest. In these cases, absent an appeal to a higher court, the parties must abide by the judge’s decision.             

       The Courts look exclusively at the child’s best interest, and no longer prefer the mother over the father in custody issues. The Courts may conduct a study of which home environment is best suited for the child and may even appoint a guardian ad litem for the child during the custody battle. A guardian ad litem, an independent attorney who is appointed to review the matter, acts in the best interest of the child. Be forewarned though, the parents may have to pay the guardian’s fee as well as their own attorney’s fees. A custody battle can be very expensive and emotionally devastating for both sides, win or lose. Be prepared!

With today’s increasingly mobile society, it does not surprise me that I am seeing more and more custody cases involving multiple states and even different countries.  Recently, I have had an influx of cases involving parents living in different locations, making it necessary to decide in which state or country custody proceedings should be initiated or restarted.

In Virginia, where a custody proceeding should occur when the two parents live in two different states or countries is determined by the application of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  The UCCJEA treats a foreign country as if it were a state of the Unites States for the purpose of its application.

At the heart of the UCCJEA is a concept known as “home state,” which is defined in Section 20-146.1 of the Code of Virginia.  A child’s “home state” is the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.  If the child is less than six months old, his or her “home state” is the state in which the child lived from birth with one or more of the parents.  While there are some caveats and/or additional criteria, Virginia typically must be the child’s “home state” before child custody proceedings can occur in one of its courts.

Unfortunately, the UCCJEA is fairly complex, even for the experienced family law practitioner.  As a result, if you or child’s parent lives in a state other than Virginia or a country other than the United States, consult with a family law attorney before filing suit.  

During every initial consultation involving custody and visitation disputes, I always explain to the potential client that there are two different types of custody: (1) legal custody, and (2) physical custody.  I then attempt to define each type of custody.  Routinely, I find myself uttering some variation of the following: “legal custody describes a parent’s legal ability to make the "big" decisions for his or her child” and “physical custody describes where the child lays his or her head each night.”  At least twice in the past few months, though, I was asked the elusive question: what does it really mean if one parent has sole legal custody? 

Unfortunately, the Code of Virginia does not clearly or practicably define the term “legal custody” (big surprise, right?).  Sections 20-124.1 and 16.1-228 each refer to “legal custody,” but none provides an exhaustive list of the decisions the legal custodian has the authority to make to the exclusion of the other parent.  I find that this is exactly what both parents—the legal custodian and the non-legal custodian alike—desperately want.  Each parent wants to be able to move down a list that begins with: “The legal custodian can…” or another list that begins with: “The non-legal custodian can…”  Each parent wants to know his or her rights and responsibilities.

In the end, based upon the Code and the even more helpful body of case law, the best definition I can offer is:

“Legal custody means that one parent has the responsibility for the care and control of the children and has primary authority to make decisions concerning them.  These decisions include where the children will live, how they will be disciplined, where they will go to school, and what ordinary medical care they will receive, among other things.  It may or may not include the right to select the religious affiliation of the children.” 

While it is certainly not the all-exhaustive definition I believe many of my clients desire, it is a start.

In November, I attended the Basic Collaborative Team Training.  I came away from the training excited about this relatively new approach to help clients resolve their differences.

Collaborative Law is an approach to conflict resolution which seeks to avoid the emotional and financial costs of litigation while giving each party the maximum information and input needed to reach an agreement.  In a nutshell, the collaborative process begins once the parties have signed a collaborative agreement.  That agreement usually dictates that both parties give full disclosure of relevant information.  Each party is represented by his or her own respective lawyer.  The parties can also choose to bring in neutral mental health and financial professionals for their benefit and the benefit of their children.  

If the collaborative process breaks down and the parties are unable to reach agreement, then none of the lawyers, mental health professionals, or financial professionals involved in collaboration can be involved in the resulting litigation.   The collaborative agreement clearly states this.  This restriction helps keep the parties committed to the process and helps to avoid the bad faith use of the collaborative process.

The collaborative process has some benefits over the traditional approaches to divorce, custody, visitation, and support disputes.  While the initial financial investment might be higher, the overall financial investment tends to decrease as the process plays out.  This is because the neutral professionals help avoid much of the duplicative, conflicting work that is done in litigation.  Additionally, the neutral assistance earlier in the process often can help parties identify and resolve issues early in the process which might complicate matters in litigation or traditional negotiation.  Like other methods of alternative dispute resolution, the collaborative approach allows the parties to craft their own solution which tends to result in better adherence to and satisfaction with the agreement.  The collaborative approach also allows for privacy which often will be to the benefit of the entire family involved in the dispute.

The collaborative process is not the best approach for every case.  However, it is an alternative which would benefit many families.  Every person facing a divorce, custody, visitation, or support dispute should discuss with an attorney whether the collaborative process makes sense for their circumstances.