“Mike, we need to talk,” Kate said as soon as Mike walked in the door.

“What now, Kate?” He replied in a resigned voice.

“Look, I don’t want to fight.  This isn’t about us; it’s about Charlie,” Kate explained.

Looking wary, Mike cautiously asked, “What about Charlie?”

“Mike, she’s barely five years old, and she’s scared about all the fighting.”

“I know how old our daughter is, Kate.  And I suppose all the fighting is my fault,” he jabbed back.  “Just remember I’m not the only one yelling and screaming.  If you weren’t constantly waiting at the door armed for battle when I got home, we might not fight so much!”

Taking a deep breath, Kate tried to start again. “Look.  I’m done pointing fingers.  I know you’re not the only one in these fights.  We both own some of the blame, but we can’t even exist in the same house without hurting our daughter.  I think it’s time we separated.  I’ve talked to my mom, and she said Charlie and I could come and stay with her for a while.  Mike, what do you think?”

“I’m not sure what to think…” Mike’s shoulders slumped forward.  “I know what you’re saying is an option, but I’m so afraid of losing my daughter.  I don’t think you should leave.  We’ll just have to try harder.  You stop nagging, and I’ll stop reacting.”

“It’s not that simple,” she said shaking her head.  “At this point, I don’t think we have an option.  I think I have to do this for me and for Charlie.”  

“Why did you ask me if you’d already made your decision?  I’m telling you that you can’t just take my daughter away from me!” As Mike spoke, his voice gained volume until he was yelling the last few words.

“See what I mean?  We always end up yelling.  I’m doing what’s best for Charlie!  I’m leaving, and you can’t stop me!” Kate yelled right back.

“What about you, Kate?  I think you’re doing what’s best for you!  Charlie is just your excuse!”

Within two hours, the small apartment was eerily silent.  Kate had left with Charlie, and Mike had disappeared being unable to stand the quiet.  The complete lack of emotion showed the empty shell of what had was once a home.  All that remained was a broken family with a little girl caught in the middle.

Unfortunately, these situations involving separation and divorce are all too common, and many people end up making difficult decisions while reacting with emotion.  Parents have the added burden of taking the mental and physical well-being of their children into consideration. The Irving Law Firm, has had experience helping families in similar situations.

The Irving Law Firm’s take:

So who’s right here?  Unfortunately, in these situations, there’s rarely a clear right or wrong answer.

Both parents have the same custodial rights at this point.  There’s nothing legally preventing Kate from moving out and taking Charlie, just like there’s nothing preventing Mike from doing the same thing.  Until the parties have a written agreement or court order in place, they’re in a situation I like to call “custody no-man’s land.”

So how do we resolve a situation where the parties literally cannot live together anymore and one needs to move out?  Rule number one is to think of the child.  Chances are, the child will have some sense of attachment to his/her bedroom, the house, and the neighborhood, and will want to stay in the house.  That doesn’t mean the “child always goes with the house” but it is certainly a consideration.  Also, what are the child’s needs?  Is one parent better equipped (i.e. has a more flexible work schedule) to tend to the child’s everyday needs like getting the child to and from school and activities, supervising homework, cooking meals, etc.?  If so, it usually makes sense for the child to stay primarily with that person until the parties can come to a formal agreement or the court can resolve the issues.

Rule number two is to maintain contact with the non-custodial parent.  That means being reasonable in negotiating a visitation schedule or in considering requests for visitation.  A parent’s refusal to allow visitation to the other parent will be looked upon with considerable disfavor should the matter ever come to court.  A successful visitation schedule will be one that ensures frequent and recurring contact with each parent, but still provides the child with as much stability as possible.  That also means facilitating phone conversations between the child and the non-custodial parent and keeping the parent informed about medical appointments, school functions, and other major issues.

If the parties are unable to successfully navigate “custody no-man’s land” then either parent may file a petition for custody in the juvenile and domestic relations court.  An attorney can tell you more about what to expect if things get to that point.  A word of caution – even though the courts are fairly diligent about processing and scheduling these matters quickly, you should never count on immediate relief from the court.  That’s why it’s best if the two parties can put aside their personal differences and play by a couple simple rules.

If you are interested in more information on separation or divorce, contact our Northern Virginia Divorce Lawyers by email or call us at (703) 844-4118