How is Paternity Established When a Child is Born to Unmarried Persons?

In Virginia, the Juvenile and Domestic Relations District Courts have the authority to resolve custody and visitation of a child when the child’s parents are not married. The Court applies the same standard as it does when it determines custody and visitation of a child born of a marriage, which is to examine the best interests of the child. When parents are unmarried, however, a father may have to establish that the child is his, which can be done in a number of ways.

Voluntary Acknowledgement of Paternity (AOP)

Unmarried parents can voluntarily acknowledge the paternity of a child by signing a Voluntary Acknowledge of Paternity (AOP) prior to discharge from the hospital. This is a form to be filled out by the child’s parents and will suffice to allow the father’s name to be listed on the child’s birth certificate. Each parent has the right to rescind the AOP within the earlier of 60 days from the date of signing the AOP or the date of entry of an administrative or court order relating to the child in which the parent is a party.

Petition to Establish Paternity

If the parents do not sign an AOP, either parent can petition the Juvenile and Domestic Relations District Court to establish paternity through DNA testing. If the DNA test confirms that the man is the biological father within a 98% probability, the Court will issue an order establishing paternity and the father may then petition the court for custody and/or visitation.

Establishing Paternity through the Division of Child Support Enforcement

Another method of establishing paternity is through the Division of Child Support Enforcement. Either parent can open a child support case with the Division and the Division will establish paternity through DNA testing. This method, however, does not grant a father rights of custody/visitation with the child, as the Division has no authority to establish a visitation schedule for either parent. If paternity is established through the Division, unmarried parents still need to petition the Juvenile and Domestic Relations District Courts to set a custody and visitation schedule for the child.

Fairfax Child Custody Lawyers Standing By

Establishing paternity and obtaining custody of or visitation with a child are two separate procedures. The attorneys at Curran Moher Weis are experienced in handling cases involving both the establishment of paternity as well as custody and visitation matters. Contact our office online or by calling (571) 328-5020 to schedule a consultation with an experienced family law attorney.

Common Family Law Issues

The most common family law issues include:

1. Divorce/Annulments – Terminating marriages through divorce or annulments. 
2. Prenuptial/Premarital Agreements – Agreements between prospective spouses made in contemplation of marriage.
3. Child Support – Payments made by a parent to cover the child’s basic living expenses. 
4. Alimony – Also known as “spousal support” Payments made by a spouse to assist the other spouse to maintain their standard of living after a divorce.
5. Adoption – Parental placement, step-parent, close relative, and adult adoptions.  
6. Paternity – Establishing the father of the child. 
7. Child Custody and Visitation –  Establishing a formal parenting plan after considering the best interests of the child.
8. Property Division – Dividing assets, debts, and other liabilities in a divorce.

If you have questions about any of these common family law issues, contact an attorney from Curran Moher Weis today.

Custody Concerns for a New School Year

Each school year poses new challenges: coordinating bus schedules, after-school programs, and sports practices. Factor in two people with busy schedules who are sharing custody of their child, and it is enough to give you a headache.

Child custody is defined as “the care, control, and maintenance of a child.” The court has to decide custody arrangements based on the needs of your child. Even if both parties have come to a mutual agreement on sharing custody, the court may still determine other arrangements will better serve your child.

As the upcoming school year approaches, if you find yourself struggling to keep up with your child’s activities, don’t despair. If your current custody schedule is problematic, consult an experienced Fairfax child custody attorney to fully understand your parental rights.

What Factors Does the Court Use to Determine Child Custody?

In determining the best interests of the child, the court will make a determination based on the following factors, as set out in Virginia Code § 20-124.3:

1. The age and physical and mental condition of the child;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child;
4. The needs of the child, giving due consideration to other important relationships of the child;
5. The role that each parent has played and will play in the future in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent;
7. The relative willingness and demonstrated the ability of each parent to maintain a close and continuing relationship with the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
9. Any history of abuse that occurred no earlier than 10 years prior to the date a petition is filed;
10. Such other factors the court deems necessary and proper to the determination.

In What Circumstances Will a Court Modify a Custody Order?

In Virginia, the Juvenile and Domestic Relations District Court handles all child custody matters. The court will not consider a change in the custody order until at least six months have passed since the original custody order was issued.

While new custody matters are generally filed in the county/state where the child has resided for the past six months, in Fairfax County, you must call Domestic Relations if you are seeking to modify a court order. You are also required to bring the original order to your appointment.

If both parties cannot agree on a modified schedule, the court will refer both parties to mediation to resolve their differences before scheduling a hearing. The court will only schedule the hearing if a judge decides that there has been a “material change in circumstances.”

A material change in circumstances refers to a significant shift that affects the child’s health and well-being. For example, if a child’s soccer schedule and the location of practices have been changed, a court may deem that new arrangements need to be put in place.

There is no limit to how many times the court can modify an order. However, you should only request that the court modify custody arrangements if you feel that it will be in the best interest of your child.

Dedicated Fairfax Family Law Attorneys Near You

With so much conflicting advice, you need guidance on what modifications should be made to your custody order. The court system can be fickle, and you need a trustable child custody lawyer in Fairfax and nearby to handle the red tape. Discover why U.S. News and World Report have given us the distinction of “best lawyers, best law firms” for eight years running. Contact Curran Moher Weis today to schedule your consultation.

What if Your Custody Schedule is Not Working?

Custody arrangements are often based on your and your child’s current schedule.  Life can get hectic, schedules can change, and the responsibilities of a parent and child can increase. If your current custody schedule is no longer working for you and your child, you should discuss your options with a Fairfax Child custody attorney at Curran Moher Weis. 

 A Virginia court will modify the current custody arrangement if there has been a material change in circumstances and it is in the best interest of the child that a modification be made. 

A “material change in circumstances” is fact specific and can include, for example, new emotional, intellectual, and physical needs of a child, the relocation of a parent, a strained relationship with the custodial parent, a custodial parent’s alcohol or drug addiction, or a parent’s remarriage. 

When considering a modification is in the best interest of the child, the court will consider the following 10 factors from Virginia Code Section 20-124.3:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated the ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deem necessary and proper to the determination.

If you believe that your current custody arrangement is no longer in the best interest of your child, be sure to speak with an attorney at Curran Moher Weis.

Divorce, Custody, and Child Support for Parents of Children with Special Needs: Medicaid Waivers (Part II)

By: Demian J. McGarry, Esq.

This is the second in a series of blogs Curran Moher Weis attorneys will be publishing on divorce and child support involving children with special needs.  Please see Part I for the first blog on this important topic.

Medicaid waivers can be a critical element in the care plan for a physically and/or intellectually challenged child.  Parents going through custody and child support disputes need to be aware of the benefits available to them under various Medicaid waivers, how they may affect their support obligations and what to be aware of when negotiating a support agreement.

Virginia established a new Medicaid waiver program in 2017—the Commonwealth Coordinated Care Plus (CCC+) program. The CCC+ program provides managed long-term service and support programs designed to offer a comprehensive set of services that address all of the Medicaid participating enrollee health care needs.  The program provides care management, care coordination and person-centered care through an integrated and interdisciplinary team approach.

There is an eligibility screening for the CCC+ Waiver.  Fortunately for families with intellectually and physically challenged minors, only the child’s income is counted, not the combined family income. This opens up the program to middle and high-income families that otherwise might otherwise go bankrupt providing care for their severely physically and/or intellectually challenged child.   Virginia’s CCC+ person-centric assessment and interdisciplinary plan of care determination essentially identifies the appropriate mix of clinical and social services needed for the child.

While the Medicaid-based CCC+ multidisciplinary person-centered clinical assessment and plan of care can help support the evaluation of private health care insurance coverage determinations, such determinations are independent of Medicaid findings.  The CCC+ program requirements recognizing the availability of third-party (private insurance) liability (coverage and payment) on behalf of a child continue to be a function of communication between the CCC+ program, the parents, the insurance company, and the child’s case management officials.  The availability of private insurance coverage for a service will not disqualify a child from the program so long there are other needs of the child not covered by private insurance.

Under Virginia law, responsibility for unreimbursed medical expenses is by default, apportioned pro rata to the parents according to income shares.  Parents going through custody or support litigation may dispute what is reasonable and necessary.  If a child is enrolled in the CCC + program, the appropriate level of service determinations now rests with the program’s professional case management team, which is primarily responsible for defining the level of care that is considered adequate, appropriate, reasonable and necessary.

For example, a child can be approved for 12 hours of Licensed Practical Nurse (LPN) care per day provided.  If a parent wanted 24 hours of LPN care, they would not be able to “double up” on the service and pay out-of-pocket as the child would then lose those 12 hours allotted to them.  That is because the professional case management team has already determined that 12 hours of LPN care per day is what is reasonable and necessary.  Parents negotiating settlement agreements for the care of their intellectually or physically challenged child need to be aware of this condition so as to not contract for providing the same type of care beyond what has been established by the program. Doing so risks losing the service altogether.

Part I of this blog series defined the attendant and respite care services that are available to children under the program.  Attendant and respite care are not nursing services, so the hours provided for these care giving services would be in addition to any nursing hours.

However, the program pays a set rate for attendant and respite caregivers depending on whether the child is located in Northern Virginia or the rest of the Commonwealth.  The parent cannot subsidize the rate of the caregiver or insist on the same caregiver each time; otherwise, they can also lose the benefit entirely.  This poses a challenge in higher-cost-of-living areas if a parent wants a high quality and more consistent caregiver who may demand a higher hourly rate.  A court can deem respite and attendant are reasonable and necessary independent of the approval of such care by the program.

When negotiating agreements on the allocation of reasonable and necessary expenses for physically and intellectually challenged children, the parties should clearly define whether or not they consider respite and attendant care to reasonable and necessary.  If they do, they should consider whether they agree to accept whatever amount of services the program may provide for, or if they go outside the program, a cap at the amount the higher payor parent would be liable for.

These issues are highly complex and distressing to parents.  We at Curran Moher Weis are here to ease that burden. Contact us today to meet with an experienced family law attorney who can help guide you through divorce or custody issues pertaining to your and your child’s needs.

How Holidays Work in Divorces and Child Custody Cases

By Grant T. Moher, Esq.

A New Year is almost upon us, and couples going through a separation or divorce this season are likely experiencing the difficulty of agreeing to holiday custody and visitation agreements. With a New Year comes another 12 months of special days that divorcing, or divorced, parents have to determine how to manage – from Christmas, to Federal holidays that result in long weekends, like Martin Luther King, Jr., Day and President’s Day, to children’s birthdays and summer school breaks.

As you plan for the year ahead, this blog will help you better understand how holiday visitation schedules work for these unique situations.

1. Federal Monday Holidays

Often, parents want to evenly divide Federal Monday holidays (e.g. Martin Luther King, Jr. Day, President’s Day, Memorial Day, Labor Day, etc.) – even if the weekend that Monday follows was spent with the other parent. Unless there is a very important reason for this, it is typically better for children to spend Federal Monday holidays with the parent with whom they spent that adjacent weekend. This facilitates out-of-town travel and activities that may run from the weekend into the holiday and makes it easier on and less disruptive to the children.

2. Children’s Birthdays

Sometimes parents want language in an agreement obligating both parents to share time with the children on their actual birthdays or celebrate the birthdays together. There are important factors to consider to make this approach work. If parents are getting along well enough to have a joint birthday party for the children, they don’t need an agreement to force them to do it. If parents do not have such a relationship, forcing a joint party or negotiating a split of time on the actual day can result in a tense and unpleasant atmosphere. If parents aren’t on terms that allow them to have an amicable joint celebration, a better scenario is for each parent to have an individual celebration for the child on his or her time, such as on the nearest weekend.

3. Summers

Commonly during summers, parents will each have some uninterrupted weeks with the children. Depending on the level of cooperation between the parents, agreements may need to include provisions for how those weeks will be determined. In situations where parents are likely to disagree on weeks, there are several methods of resolving disputes. For example, some choose to state that in odd-numbered years (2019, 2021, etc.) one parent’s chosen weeks take precedence, and in even-numbered years the other parent’s preferences take precedence.

Another possibility is to require that a parent’s week start and end on a particular day that encompasses his or her already-scheduled weekend. The upside to this approach is that it is impossible for the parents to schedule weeks that conflict with each other. The downside is that a major event (e.g. a wedding or family reunion) may fall outside of these potential weeks.

Since events come up, and other situations could occur that need advance planning, such as summer camps, I typically advise parents to give notice of their chosen weeks as early as reasonably possible in the New Year. There is nothing to guarantee both parents will agree to those weeks and that further issues won’t arise, such as when parents do not provide ample notice of their preferred weekends, language can be built into agreements to get ahead of this.

4. Thanksgiving and the issue of three weekends in a row

Where parents have a regular schedule that involves alternating weekends and the custody schedule provides that Thanksgiving encompasses both the holiday and the weekend immediately following it, one party or the other can end up having three weekends in a row with the children. This happens if one parent’s Thanksgiving falls on the other’s weekend. Sometimes parents are fine with this. However, if they are not, the good news is there are multiple ways to solve this.

One way is to make Thanksgiving encompass only the Wednesday through Friday of the holiday and not the weekend. This solves the problem of three weekends in a row, but this may not be desirable when one or both parents customarily travel over the holiday and want the entire weekend to do so. Another option is to “reset” the schedule if it were to result in one parent having three weekends in a row, such that the weekend immediately following Thanksgiving weekend would switch to the parent who did not have the children over Thanksgiving weekend and the weekend immediately prior to it.

5. Spring break

It is customary in custody schedules to make provisions for spring break.  Children and their parents often travel during this week as it is normally the longest break schools have between winter break and summer recess.  Some custody schedules alternate the entirety of spring break each year and some schedules split the spring break in half, with each parent having time with their children.  Whether you choose to alternate or split spring break, it is critically important to define exactly which days spring break covers.  Most school calendars define spring break as the Monday through Friday of the week, leaving off the weekends.  Thus, if the intention is to include the immediately preceding or following weekend, the custody schedule must clearly define this.  The same is true if the custody schedule splits the spring break week in half; parents need to know what the start and end date is to calculate the halfway point.

Example of a Holiday/Summer Schedule:

While holiday/summer schedules can be adjusted in virtually any way, sometimes people want to begin with a generic template to give them an idea of how to start. The following is a common schedule that can be modified, and can at least give a basic idea of how such schedules can look.

Note, the following is provided for example purposes only. Visitation schedules must be developed and tailored to meet the unique needs of each couple and their child(ren). It is important to seek support from a family law attorney with extensive experience counseling on the best visitation schedule for you.

A.  Holiday Visitation

Holiday visitation shall be as set forth below. To the extent that the holiday visitation set forth below conflicts with the regular weekly custodial schedule, the holiday visitation shall supersede it.

1. Spring Break
   The parties shall alternate the children’s school Spring Break each year, defined as 5:00 p.m. on the Sunday after school releases until 5:00 p.m. the Friday before school reconvenes. Father shall have Spring Break in even-numbered years. Mother shall have Spring Break in odd-numbered years.
2. Thanksgiving
   Thanksgiving shall be defined as the time school lets out on the last day of school before the Thanksgiving holiday until 5:00 p.m. on the Friday immediately following the holiday. Mother shall have the children for Thanksgiving in odd-numbered years. Father shall have the children for Thanksgiving in even-numbered years.
3. Winter Break
   The children’s winter break from school shall be divided in half. In odd-numbered years, Mother shall have the children for the first half of the winter break, and Father shall have children for the second part of the winter break. In even-numbered years, Father shall have the children for the first part of the winter break, and Mother shall have the children for the second part of the winter break.
4. Fourth of July
   The parties shall alternate the Fourth of July holiday each year, defined as 10:00 a.m. on the holiday until 10:00 a.m. the next morning. Mother shall have Fourth of July in odd-numbered years. Father shall have Fourth of July in even-numbered years.
5. Father’s Day
   In all years, Father shall have the children from 9:00 a.m. until 5:00 p.m. on Father’s Day.
6. Mother’s Day
   In all years, the mother shall have the children from 9:00 a.m. until 5:00 p.m. on Mother’s Day.

B.  Summer Visitation

Each parent shall have the children for two (2) uninterrupted weeks during the summer, which may be taken consecutively. Each parent shall designate their week by April 1st each year. If the parties’ chosen weeks are in conflict, mother’s choice shall control in odd years and Father’s shall control in even years. Unless otherwise agreed in writing, weeks shall start at 5:00 p.m. on the Friday beginning a party’s weekend, and continue through the following Friday at 5:00 p.m.

Visitation schedules can be complicated and can cause tensions to run high amongst parents. The attorneys at Curran Moher Weis have decades of experience in guiding parents through negotiating a custody and visitation schedule that is optimal for parents and most importantly, their children. Contact us for more information, and check back on our blog regularly for the latest advice on this and other important divorce and custody matters.

When is Sole Custody Justifiable in Virginia?

Potential clients often ask about the likelihood that they will be awarded sole custody of their child. This prediction, however, is not so easily forecast. In Virginia, there is both legal and physical custody, and there can be both sole legal and/or sole physical custody awarded or agreed to in any case. Legal custody refers to a parent’s ability to make major decisions regarding a child. So, sole legal custody is the situation where only one parent is responsible for making all decisions regarding a child. Physical custody refers to daily care of a child. When a parent is awarded sole physical custody of a child, he or she is the parent responsible to care for that child. Nevertheless, in all situations involving custody, the courts weigh a number of factors in determining what is in the best interests of the child.

Top Challenges You’ll Face When Filing for Custody in Virginia

Child custody invokes strong emotions and intense personal interest from all parties involved.  Matters involving the best interests of one’s child or children can have serious consequences.  Money is fungible and can come and go — your children are your children.

Divorce and the Holidays: Tips from Curran Moher Weis

As the Christmas and New Year holidays are fast approaching, you want to be able to enjoy the holidays with your children and other loved ones.  If you are divorced with children or in the midst of a divorce with children, the holidays can be a very stressful time.  The last thing that anyone wants to do is argue over custody and visitation issues with their former spouse or soon-to-be former spouse during what should be a joyous and happy season.

Children’s Testimony in Custody Cases

One of the biggest dilemmas that both family law attorneys and parents face in custody cases is whether a child should testify in the custody trial.  Some parents want to shield their child from the court process regardless of the circumstances, while others want to give their child a voice – particularly if the child wants to be heard.  Let’s look at some things to consider when this issue pops up:

Children’s Testimony, The law:

In custody cases, trial courts have a list of factors they must consider in determining what is in the “best interests of the child.”  These factors are listed in §20-124.3 of the Code of Virginia.  Factor 8 instructs the court to consider the “reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.”  A judge, after examination of the child or hearing evidence about the child’s age, maturity, and intelligence, has the discretion to decide whether the child is competent to testify.