No one has it easy as a marriage comes to an end. But things become even more complicated – and the potential for immense emotional pain only grows – when a child is involved.
Our legal system has set up standards that remove the emotion from custody decisions. The judge is expected to act in the best interests of the child as that judge perceives the situation. So, if your hope is to persuade your judge to protect your child as you would like, you need to know the criteria all Virginia judges must use when making their decision.
Have a look at the code, and let’s discuss the ten provisions your judge will be using to determine your case:
In determining best interests of a child for purposes of determining custody or visitation arrangements the court shall consider the following:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
-This is exactly the kind of calm and reasoned assessment you want when a judge is considering where your child will be living and how much time the other parent will have to spend with that child. It is to be applauded. But, you know better than anyone else what your child needs – so talk with your lawyer if you believe the strength of your relationship with your child is less easily observed by outside viewers and needs pointing out.
2. The age and physical and mental condition of each parent;
-If you’re worried that your spouse might harm your child (and fears of neglect or a parent’s incapacity to care for a child are just as legitimate as fears of abuse or the presence of addiction), then speak up. Tell your lawyer your concerns. This is the time, but be careful that these potentially harmful behaviors are not turned towards the one pointing the finger, too.
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;
-This is the provision that notes who has put in the time in the raising of a child. It makes room in the decision to honor the parent who focused on being the steady daily support in a child’s life, even when the other parent can show the judge a big salary and a large house.
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;
-You can see how hard the State is trying to act in your child’s best interest; they are looking beyond the relationship that you and your spouse have with your child. Your judge will try to ensure that all the influences in your child’s life are taken into account. It is not a sign of weakness to tell your lawyer if you have a strong support network to help you raise your son or daughter; the court will appreciate knowing you have help and that your child will have loving support in addition to you. If you have concerns about members of your spouse’s family or other network, bring those up, too.
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
-By law, your judge has to look past what is best for your child today and consider what will be best for your child throughout his or her childhood. That means, for example, that the physical closeness of a breast-feeding mother to her infant will not necessarily determine custody of the child once he or she is weaned. Present your case for custody accordingly.
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;
-If you have ever kept your child away from your spouse, it’s going to come up in the case – so make sure your lawyer knows why you took that action. If you acted to protect your child, the judge can take that into account.
7. The relative willingness and demonstrated 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;
-Your judge will be looking for two things here: the parent who is prepared to remain an ongoing part of a child’s life even if he or she does not get full custody; and the parent who demonstrates the greatest ability to act cooperatively to protect and care for the child. A divorce is an emotional roller coaster and your nerve endings are raw – but show the judge you can at least be civil to the person you’re divorcing and the judge will be more likely to ensure that both mother and father remain a part of your child’s life.
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;
-The idea that your child might choose your spouse over you—and your child’s possible anguish over having to voice such opinion—seems brutal. But this provision will be used carefully; your child may never be asked for his or her opinion. It will only happen when the judge thinks a discussion with your child will be helpful. Don’t panic if it happens; most people would advise you not to coach your child, either, but we all know that this is done every day. If you believe your spouse is influencing your child’s testimony, tell your lawyer.
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
-If you know of or suspect abuse of your child, that is probably already a part of your case. If the alleged abuse is substantiated by evidence, a judge may disregard the non-abusing parent’s unwillingness to allow contact with the other parent when determining matters of custody. Abusers do not have the same rights as normal parents. Again, the Code of Virginia provision is a live link; click on it to read.
10. Such other factors as the court deems necessary and proper to the determination.
-This is the “just in case” provision. If the judge sees something that he or she feels is important to consider, but that is not covered by the first nine provisions, it is within his or her rights to consider additional factors in the custody decision…and rightly so. You want the best for your child; so does the state of Virginia.
The judge shall communicate to the parties the basis of the decision either orally or in writing. Except in cases of consent orders for custody and visitation, this communication shall set forth the judge’s findings regarding the relevant factors set forth in this section.
-By law, the process has to be transparent; you’re entitled to know why your judge decided as he or she did. And, remember, matters concerning minor children are never closed. If you feel that you have repaired whatever was found lacking in terms of your parenting skills, if you “lost” a “custody battle”, you are almost always permitted to re-petition for a review of that order and show the judge that things have changed and that it would be in the best interest of your children for a change in the custodial care arrangements to be ordered.
If you are going through this type of litigation, we know that it is one of the most painful processes in modern life. A divorce with custody issues leaves everyone angry, frightened, and anxious. Remember to take a deep breath, be kind to yourself, and work to protect and love your child.
Posted by Prudence Bovee, Guest Writer
This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.
Please know that information regarding Obamacare changes all the time and it is very difficult to get a handle on what the actual effect will be on us all. As my insurance broker told me: “None of us really know how the new health insurance laws will affect us until 2014”. This article will be helpful, we believe, but make sure that you do your own research.
The Patient Protection and Affordable Care Act (PPACA), more commonly referred to as Obamacare, was signed into law on March 23, 2013, and upheld by the Supreme Court on June 28, 2012. Obamacare has and will continue to change the way individuals, families and employees are provided and protected by their health insurance plans.
It is important to note, before we begin listing the changes, that coverage will more than likely not change, nor will rates increase, for individuals, families or employees who are already covered under an existing health insurance plan. Obamacare speaks more to new plans and requires that, as of September, 2013, all insurance companies begin using the same form and format to help prospective applicants compare coverage plans. Further, plans that existed before March 23, 2010 are not required to comply with the rules put in place by the PPACA (they are “grandfathered” in), with exceptions.
All plans, including those that have been grandfathered in, are prohibited from applying lifetime dollar limits to key health benefits such as preventative care, treatment for allergies, and visits to physicians’ offices for sickness or injury. They can, however, still limit health care services that are not considered essential (both new plans and plans established pre-March 23, 2010). An example of a non-essential service would be hospice care or infertility treatments. Also, all healthcare plans, including grandfathered plans, are required to extend coverage to children who are on their parents’ plans until the child is 26 years old (whether or not the child is married, living outside of the family home, or is eligible for his or her own health insurance through an employer). Perhaps most important is the fact that new plans are not permitted to exclude applicants on the basis of preexisting conditions. This already applies to children and, beginning January 2014, will also apply to adults. Grandfathered plans, on the other hand, are permitted to make exclusions on the basis of preexisting conditions for both children and adults. Currently, PPACA guarantees healthcare coverage for all children, under the age of 19, regardless of preexisting conditions.
MANDATORY INSURANCE OR PAY A TAX
Plans covered under the PPACA are available through an exchange, often also referred to as a marketplace. Beginning in October 2013, US citizens and legal residents will have the opportunity to compare healthcare plans to decide which is most affordable and protective for their families. Obamacare mandates that all individuals not covered by an employer sponsored plan, Medicare, Medicaid, or other public program, secure an approved private insurance policy or pay a penalty (which is in the form of a tax). Individuals can also opt to stick with their current insurance plan, so long as the plan has been grandfathered in by PPACA. Should a person choose to opt out, and have no coverage at all, the tax penalty is 2.5% in 2014 (unless an individual makes over $200,000 a year, in which case it is the cost of the “bronze insurance plan,” about $5,000 per year) and will rise in the following years.
There are some exemptions to that penalty: Individuals who make under $9,500 per year, or are facing “financial hardship, and certain other individuals who are members of IRS designated groups (American Indians, certain religious groups etc.). The coverage for plans purchased through the exchange begins January 1, 2014. To help individuals learn how to sign up for insurance under the Affordable Care Act, the US Department of Health and Human Services has compiled a list of resources you can find here. (This hyperlink should take you to http://cciio.cms.gov/resources/other/index.html#hie) You can also view the form you will need to fill out here. (This one should take you to http://www.takepart.com/sites/default/files/ObamacareIndividualForm.pdf)
Under the PPACA, insurers are required to offer the same premium to applicants of the same age and geographic location regardless of most preexisting conditions (currently excluding tobacco use). Gender, too, is not a factor to be considered in establishing premium price. PPACA already disallows exclusions for preexisting conditions pertaining to children, under age 19, and that same rule will follow as concerns adults beginning in January 2014. Preexisting conditions are covered under the PPACA as long as you are a US citizen or legal resident, have previously been denied insurance because of your condition and if you have been uninsured for at least six months.
CHOICE OF HEALTH CARE PLAN, PREVENTATIVE CARE & COUNSELING:
Healthcare plans established after March 2010 must protect an individual’s choice of healthcare providers and the participants’ access to emergency care. They also must cover certain preventative care absolutely free of cost (no co-payment, co-insurance or deductible). Preventative care may include: blood pressure, diabetes and cholesterol tests, many cancer screenings (including mammograms and colonoscopies), baby and child check-ups (until age 21), counseling, screening and vaccinations during pregnancy, vaccines against measles, polio and meningitis.
Obamacare requires full coverage for counseling services on topics such as tobacco addiction, weight loss, substance abuse, and depression. Furthermore, insurers can no longer deny coverage based on a patient’s mental status. Instead, they will be required to cover mental health patients at parity with medical and surgical benefits. Beginning in January 2014 mental health will be part of the essential benefits package.
NO CAPS ON ANNUAL OR LIFETIME LIMITS
Under the PPACA, insurers cannot put a cap on annual or lifetime limits for essential services. This means services required to keep a patient alive and in good health must be covered; this is everything from lab, x-ray and diagnostic services to emergency room services to rehabilitation services to pregnancy and preventive care. Furthermore, healthcare plans are not allowed to drop members because they become sick. Some plans will, however, be permitted to put a cap on spending that is not considered “essential” (just like grandfathered plans). Know that, even if you stay with a plan that has been grandfathered in, as long as you have changed or renewed a policy after March 2010, your insurer cannot put a cap on essential services. Grandfathered plans may, however, continue to enforce annual caps until 2016.
Insurance companies are required to notify the public if they are going to increase their rates (this is called a rate review) and they must abide by the 80/20 rule. This rule mandates that insurers who sell policies to individuals or small groups must spend at least 80 percent of the premiums received directly on medical care and efforts to improve care. They cannot spend more than 20 percent on administrative costs. Insurers selling to large groups (usually 50 or more employees) must spend at least 85 percent directly on care and efforts to improve care. If insurers fail to do so, they must provide a rebate of the portion of the premium that exceeds the limit.
If you make between 100% and 400% of the poverty line (about $88,000 per year for a family of four) you are eligible for a tax credit to help offset the cost of insurance. Individuals who make over $200,000 a year, or families who make over $250,000 per year, will pay a tax of .09%, beginning in 2014, to help offset the cost of Obamacare. Under plans covered by the PPACA children are covered from birth for just about everything imaginable.
The cost of most prescription drugs are covered or reimbursed beginning in 2016. Prescriptions written for non-essential services are not mandated to be covered.
Sources and helpful links
Posted by Zia Meyer, Mediation Assistant