Modifying Custody Because of the Custodial Parent's Pending Criminal Sentence

My question involves a child custody case from the State of: Virginia
OK, so here's the situation. I have a 5 year old son who lives in Virginia with the mother and step dad. I live in Texas with my wife and two other children; 3 and 1. 3 years ago the mother and I went to court and I got put on supervised visitation supervised by the mother. I agreed to her wishes because at the time I could not afford to keep coming back and forth to court. It was agreed through a mediator not court ordered. Now, 3 years later I am put in papers to Virginia court to get my visitation unsupervised. After our first court date got continued I found out that the mother of my child is now facing a year in prison. On our next hearing I am going to ask for full custosy since she will be incarcerated. She has explained to me that my child would be going to her mother because he has only been alone with me once and he has never been out of the state without her. I got a letter in the mail saying the grandmother has filed a petition for custosy and that the hearing will be on the same say as our hearing. My relationship with my son is not the best but he does know his father, step mom, and siblings on this side of the family. I tried to call at least once a week or more but being so far away has put a toll on our relationship. I work, provide for my family, and already have his room set up for him to live with me. I guess what I'm asking is if I have a strong case or will the grandmother moat likely get him because of the fact that he has never been with me nor to my home? I do have a criminal background but the mother does too. I have no felonies unlike her. I read that she would have to prove that I am an unfit parent for me not to get my son but I also read that other factors determine getting him as well.
Help please.

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Quoting jwright051

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My question involves a child custody case from the State of: Virginia
OK, so here's the situation. I have a 5 year old son who lives in Virginia with the mother and step dad. I live in Texas with my wife and two other children; 3 and 1. 3 years ago the mother and I went to court and I got put on supervised visitation supervised by the mother. I agreed to her wishes because at the time I could not afford to keep coming back and forth to court. It was agreed through a mediator not court ordered. Now, 3 years later I am put in papers to Virginia court to get my visitation unsupervised. After our first court date got continued I found out that the mother of my child is now facing a year in prison. On our next hearing I am going to ask for full custosy since she will be incarcerated. She has explained to me that my child would be going to her mother because he has only been alone with me once and he has never been out of the state without her. I got a letter in the mail saying the grandmother has filed a petition for custosy and that the hearing will be on the same say as our hearing. My relationship with my son is not the best but he does know his father, step mom, and siblings on this side of the family. I tried to call at least once a week or more but being so far away has put a toll on our relationship. I work, provide for my family, and already have his room set up for him to live with me. I guess what I'm asking is if I have a strong case or will the grandmother moat likely get him because of the fact that he has never been with me nor to my home? I do have a criminal background but the mother does too. I have no felonies unlike her. I read that she would have to prove that I am an unfit parent for me not to get my son but I also read that other factors determine getting him as well.
Help please.

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Dad, you taking custody like that could be very hard on your son. He barely knows you. What normally happens in a case like this is that its worked into gradually, with the child visiting your home as often as practical, before transitioning the child to your custody. However, since mom is only going to be incarcerated for a year, and you also have a criminal record, mom would likely be out of prison before that transition could happen.

Now if grandma hasn't be a constant factor in the child's life either, that would be a totally different story.

Well perhaps better addressed to counsel in VA...it may be that the rules give a bit of a reference to the childs natural parent ahead of a 3 party if the normal CP is out of the picture for an extended time?

When mom and dad both have parental rights, and mom cannot care for the child due to her incarceration, custody of the child will ordinarily go to dad -- no transition plan required. Unless a third party successfully petitions for guardianship based upon the child's best interest and the unfitness of the child's parents, when mom goes to prison dad can get custody, no transition plan required.

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Quoting Elder v. Evans, 16 Va. App. 60, 65, 427 S.E.2d 745, 748 (1993)

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"In all child custody cases, including those between a parent and a non-parent, 'the best interests of the child are paramount and form the lodestar for the guidance of the court in determining the dispute.'" Bailes, 231 Va. at 99, 340 S.E.2d at 826 (quoting Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198 (1962)). However, the principle is well established that "the rights of the parent are, if at all possible, to be respected." Walker, 203 Va. at 421, 124 S.E.2d at 198.

In custody disputes between a natural parent and a nonparent, the law presumes the best interest of the child will be served when in the custody of the natural parent. Based on this presumption, "the rights of the [natural] parents may not be lightly severed but are to be respected if at all consonant with the best interest of the child." To overcome the strong presumption favoring a parent, the nonparent must adduce by clear and convincing evidence that: (1) the parents are unfit; (2) a court previously has granted an order of divestiture; (3) the parents voluntarily relinquished custody; (4) the parents abandoned the child; or (5) special facts and circumstances constitute extraordinary reasons to take the child from the parents.

Mason v. Moon, 9 Va.App. 217, 220, 385 S.E.2d 242, 244 (1989) (citations omitted). "The burden of showing the existence of circumstances which would deprive the father of the right to custody of his [child] is upon the parties opposing this right. Such evidence of unfitness must be cogent and convincing." Judd, 195 Va. at 996, 81 S.E.2d at 436 (citations omitted).

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Here, were a third party to try to get guardianship, I would expect them to argue that there were three years of effective abandonment, and that the father's long-term absence was evidence of his unfitness and that the modification of custody was likely to be detrimental to the child -- but that's not an argument for phased reintroduction leading to dad's getting custody.

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Quoting Mr. Knowitall

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When mom and dad both have parental rights, and mom cannot care for the child due to her incarceration, custody of the child will ordinarily go to dad -- no transition plan required. Unless a third party successfully petitions for guardianship based upon the child's best interest and the unfitness of the child's parents, when mom goes to prison dad can get custody, no transition plan required.

Here, were a third party to try to get guardianship, I would expect them to argue that there were three years of effective abandonment, and that the father's long-term absence was evidence of his unfitness and that the modification of custody was likely to be detrimental to the child -- but that's not an argument for phased reintroduction leading to dad's getting custody.

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I have seen a good half dozen cases, in a half dozen states over the years where one parent died or went to prison (but not just for one year, it was always much longer than that) and a formerly absent or semi absent parent wanted custody, and a grandparent who was very active in the child's life filed for custody or guardianship.

In all of those cases, because the parent was either a stranger or almost a stranger to the child, the courts did elect to transition things. The grandparent was granted temporary custody or guardianship, with the parent having to exercise as much visitation as possible in order to transition the child.

I think it makes a great deal of sense. Its far less traumatic for the child.

If the parent agrees to transition, as many will, then the court can certainly go along with the parent's wishes. If there is a viable contender for guardianship, the judge can use that to press the parent to agree to a transition. But if nobody else were seeking custody, without regard to what might make sense, unless the parent agreed the court would have no basis to deny the parent immediate custody of his child.

OPs,post,does not say he abandonned child...it seems to,say that Mom inhibited his role by insisting on supervision?

OP does not say GM has had a key role in child life or even if She resides in same school district,....assuming many a 5 year old is headed for K or 1st grade in fall.

OP...I think your odds rest on having seasoned Va counsel in there for your point of view in both hearings.

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Quoting HRinDEVON

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OPs,post,does not say he abandonned child...it seems to,say that Mom inhibited his role by insisting on supervision?

OP does not say GM has had a key role in child life or even if She resides in same school district,....assuming many a 5 year old is headed for K or 1st grade in fall.

OP...I think your odds rest on having seasoned Va counsel in there for your point of view in both hearings.

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I do agree that we do not know whether grandma has a key role in the child's life or not, and that can certainly make a huge difference in any outcome. I also agree that dad needs an attorney.

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Quoting HRinDEVON

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OPs,post,does not say he abandonned child...it seems to,say that Mom inhibited his role by insisting on supervision?

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You need to read the actual post. He indicated that he agreed to supervised visitation and that it was too much of an expense and inconvenience to him to exercise his visitation for the next three years. He is free to argue that his three-year absence does not constitute any form of abandonment, should it become necessary to do so, but I will promise you that the judge was not born yesterday.

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Quoting Mr. Knowitall

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You need to read the actual post. He indicated that he agreed to supervised visitation and that it was too much of an expense and inconvenience to him to exercise his visitation for the next three years. He is free to argue that his three-year absence does not constitute any form of abandonment, should it become necessary to do so, but I will promise you that the judge was not born yesterday.

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I believe it was too much of an inconvenience to dad to be going back and forth to court to fight the supervised visitation plan, not to exercise the visitation. It wouldn't really make sense if dad agreed to the supervised visits, did nothing with the kid for 3 years, and now wants unsupervised visits.

Although, stranger things have happened on this site...