Reasons to Withhold Visitation in Virginia Child Custody
By Beverly Bird
Virginia law is firm that a child has a right to contact with both parents. If you deny visitation without court approval, and do it often enough, you could lose custody. If circumstances make it unsafe for your child to spend time with her other parent, you can ask the court to issue an order changing your visitation arrangement. However, it's not likely that a judge will deny visitation entirely.
Depending on the reason you want to withhold visitation, you have a couple of options. If your ex shows up at your door to pick up your child and he's visibly intoxicated or under the influence of drugs, you don't have to allow your child to get in the car with him. If the courts aren't open, you can call the police and make a report. Otherwise, you can go to the courthouse, explain your problem to the clerk and ask for help. The clerk can tell you how to request an emergency hearing so you can ask a judge for approval to deny that day's visitation. If the problem isn't limited to an isolated incident -- for example, if there's ongoing neglect or abuse in your ex's home -- you can file a motion with the court, asking a judge to address the problem and modify your divorce decree's visitation terms accordingly.
Burden of Proof
If you file a motion to change visitation, Virginia law requires that you serve your ex-spouse with a copy of your paperwork so he has an opportunity to defend himself. The court will hold a hearing and the burden will be on you to prove that something fundamental and serious has changed since your divorce decree was issued and current visitation terms ordered. You'll need documentation and proof of why the situation makes you believe it's dangerous for your child to spend time with her other parent. The court will only change the visitation terms of your decree if a judge feels it's in the best interests of your child to limit her contact with your ex, so you might need the help of an attorney.
If the court wants more evidence than your documented proof, Virginia law allows judges to order a guardian ad litem or court-appointed special advocate to meet with you, your child, your ex-spouse and anyone else with knowledge of the situation. The GAL or CASA then reports back to the court regarding what they've determined to be in your child's best interests. A judge might order a psychological evaluation of your ex-spouse, drug or alcohol testing, or a study of his home to substantiate the bad conditions that make it dangerous for your child to go there. The judge probably won't make a ruling until he has all this information.
A Virginia court is only likely to deny all visitation from your ex-spouse if he's convicted of a serious crime, such as murder, manslaughter, attempted murder, felony assault or sexual assault against a child. Other situations might only result in supervised visitation. Supervised visitation can protect your child while still allowing her contact with her other parent. Virginia has approved visitation facilities where your child and your ex can spend time together under the supervision of staff: someone who is trained to monitor the visits and assist as needed. Supervised visitation is usually only temporary, however. It's intended to repair the situation and reunify your child with her other parent.
Visitation and Child Support
Sometimes parents think they're justified in withholding visitation because their ex isn't paying child support. However, child support and visitation don't legally go hand-in-hand. If you're having trouble collecting child support from your ex, you can contact the court or your state's child support enforcement agency and ask them to help you enforce payment, but you can't deny your child the right to see her other parent.
Read More: Can a Noncustodial Parent Lose Visitation for Nonpayment of Child Support?
- Virginia Legal Aid Society: How to Take a Child Custody or Visitation Case to Court (PDF)
- Law Chambers of Anton J. Stelly: If Your Former Husband or Wife is Not Permitting You to Have Visitation with Your Children
- For Children's Sake of Virginia: Supervised Visitation
- WomensLaw.org: Know the Laws – Virginia Custody
- Langley Law Center: Child Support, Custody and Visitation in Virginia (PDF)
- Roop Law: Visitation FAQs
- Hoffheimer Ferrebee: Your Virginia Child Custody Agreement and Your Ex
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.