4.6 Factors to Consider in Any Custody Agreement

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2019 Ed.)

4.6 FACTORS TO CONSIDER IN ANY CUSTODY AGREEMENT

4.601 Avoiding the Words "Custody" and "Visitation." An agreement that avoids the words "custody" and "visitation" in favor of terms like "parenting time" has become more common and is encouraged as a means of settlement. This change in language can be particularly helpful in negotiating settlement with sole physical custody as the more neutral term avoids the implication the custodial parent is the "sole" provider for the child.

4.602 Restrictions. Occasionally, the agreement includes specific restrictions on parenting time. Restrictions should be prepared and used with caution; too many prohibitions may create an untenable arrangement. Such restrictions may include:

	1.	Denial of overnight visits. This restriction is used only in rare circumstances, such as when the mother is nursing the infant child or the noncustodial spouse is suspected of child abuse, adultery, cohabitation, or drug or alcohol abuse or has inadequate housing;
2.	Restrictions on visits outside the area or state. Particular attention must be paid to agreements which contemplate visits to countries that are not signatories to the Hague Convention. Such countries will not enforce the return of children to their country of habitual residence; 63
3.	Avoidance of specific places, people, or activities. This may include prohibiting such activities as religious campaigning, driving with the child when the parent has a history of alcohol abuse or a bad driving record, or allowing the child to ride a motorized mini-bike; 64
4.	Significant Others. It is likely one or both parents will eventually develop a romantic relationship with a new individual. To prevent exposing the children to non-serious relationships, it is common to include language restricting contact with a new significant other unless the relationship is monogamous, well-established, and the other parent has the opportunity to meet the new significant other;
5.	Activities enjoined by a court order. According to an unpublished opinion, the court has the authority to enjoin a third party, in this case the mother's husband, from making derogatory remarks about the father in the presence of the child. 65 According to another unpublished opinion, the court has the authority to restrict a
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parent's use of alcohol and tobacco during parenting time. 66 Section 20-124.2(F) requires a party to provide a copy of a custody order that affects children's school enrollment or prohibits a party from picking up the child from school to the affected school within three days of that party's receipt of the order; 67 and
6.	Other activities. The court may preclude the use of parenting time for activities that may be considered emotionally harmful to the child. 68

4.603 Advance Notice. Advance notice is rarely required for normal weekend visits, but it is advisable for planning summer vacations. Use of predetermined vacation dates is a good idea, as is the statement of a deadline (such as May 1) by which a parent must indicate his or her preferred summer parenting times. ⁶⁹

4.604 Grandparents' and Others' Third-Party Custody and Visitation Rights. ⁷⁰ Sections 16.1-241(A) and 20-124.2(B) of the Virginia Code permit the award of custody or visitation to grandparents, step-grandparents, stepparents, former stepparents, blood relatives, and family members. For purposes of negotiating and drafting an agreement that includes custody or visitation rights of a nonparent, it is critical that the practitioner understand the significance of such an agreement and the ramifications of incorporating such an agreement into a court order.

A nonparent seeking custody of a child must first rebut the legal presumption favoring natural parents. ⁷¹ Once a nonparent rebuts the parental presumption, the parent and nonparent stand equally before the court and custody is then determined under the "best interest factors" enumerated

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in section 20-124.3 by a preponderance of the evidence. ⁷² Under Virginia law there are five ways to rebut the parental presumption: (i) proving parental unfitness; (ii) entry of a previous order of divestiture; (iii) voluntary relinquishment of the child; (iv) abandonment of the child; and (v) a finding of special circumstances constituting an extraordinary reason to take the child from its parent. Of particular interest when negotiating a custody agreement is the order of divestiture sufficient to rebut the parental presumption. ⁷³ Entering into a written agreement providing custody rights to a nonparent that is subsequently incorporated into a court order could be considered an "order of divestiture," thereby placing a nonparent on an equal footing with a parent in a subsequent custody dispute. ⁷⁴

Practice Tip #1: If the practitioner represents the parent who is contemplating an agreement to share custody with a nonparent, or place custody with a nonparent, the agreement should expressly state that the arrangement is not a waiver of the "parental presumption" and shall not be interpreted to rebut the parental presumption. ⁷⁵ The practitioner should also avoid any court order incorporating such an agreement that would divest the parent of their parental presumption unless the parent wants the nonparent to be on an equal "best interest" footing with the parent.

Practice Tip #2: If the practitioner represents the nonparent who is seeking custody of a child, the agreement should expressly state that the arrangement is a waiver of the "parental presumption" or a "voluntary relinquishment." If the agreement is subsequently incorporated into a court order, then the practitioner should try to include language in the order

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indicating that it was a result of a "hearing on the merits" and/or that it is a "final order," as applicable.

For a nonparent seeking visitation rights with a child over the joint objection of the child's parents, the court must find a compelling interest, known as "actual harm," to award such visitation and may not rely solely on the "best interests" factors enumerated in section 20-124.3. ⁷⁶

The Virginia Court of Appeals has held that where one parent objects to grandparent/third-party visitation but the other requests it, the court is not required to follow the strict standard in Williams v. Williams ⁷⁷ and may base its determination of whether to grant grandparent visitation (or visitation by any other "person with a legitimate interest") on the "best interests" factors enumerated in section 20-124.3. ⁷⁸

4.605 Travel Costs. Who will pay the costs of travel incident to parenting time? ⁷⁹ If the parents cannot agree on this issue, the court will make the decision for them, based upon its broad discretion to fashion the relief necessary for the child's best interests. ⁸⁰ It is possible agreements related to travel costs may provide justification for a deviation from the child support guidelines.

4.606 Relocation. What happens if one parent moves from the area? Should alternative parenting arrangements be provided in the agreement

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that will apply if a move occurs? ⁸¹ If the parents already know about a parent's planned move at the time the agreement is being negotiated, this could be addressed to prevent any anticipated conflict.

In Gray v. Gray ⁸² and Carpenter v. Carpenter, ⁸³ the Virginia Supreme Court considered the issue of whether to allow the custodial parent to remove the child from the Commonwealth and reached opposite results. ⁸⁴ Later, in Sullivan v. Knick, ⁸⁵ the Virginia Court of Appeals issued an expansive restatement of Virginia law, reversing for the first time a trial court's finding that relocation was in the child's best interest. All three decisions turned on what was in the child's best interest. ⁸⁶ Section 20-124.5 of the Virginia Code requires that either parent who intends to relocate or change address provide the other parent and the court with a 30-day advance written notice of the move. ⁸⁷ Often a 30-day notice provision does not give adequate time to obtain a hearing on the merits; however, it does provide a parent sufficient opportunity to file a motion to enjoin the move until a full evidentiary trial can occur. Parents are free to require longer written notice in an agreement, but not shorter; notice cannot be shorter than the statutory time.

If possible, a custody agreement should provide for procedures to be followed in the event of a move (for example, that custody be temporarily transferred to the nonmoving parent until a hearing can be held and that the moving parent agree to pay for all transportation costs for the child's travel to and from the parent's new home). ⁸⁸ If such a contingency plan has been included in a parenting agreement or court order, the court is more likely to enforce it. ⁸⁹

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One additional consideration is the constitutionality of any provision that might be seen as a restriction on a party's ability to move between states and thus be unenforceable. ⁹⁰

4.607 Withholding a Child from the Other Parent. What is the practical and legal effect of a parent failing to deliver a child to the other parent as required under the agreement? The Virginia General Assembly has recognized the difficulty many noncustodial parents experience in visiting with their children and has acknowledged the vulnerability and helplessness of parents who find themselves in this situation. Section 20-108 of the Virginia Code reads: "The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court." ⁹¹ In addition to possible...