Child Custody: What happens when a protective order is in place?

It is not uncommon for individuals who have gone through a bitter divorce or custody case to have trouble communicating effectively. But what happens if you and your child’s other parent are not legally allowed to have direct communication with each other?  Who gets custody if a protective order is in place?

The Virginia Court of Appeals recently ruled that, despite the existence of a long-term protective order preventing mother and father from communicating with each other, a Circuit Court may order joint legal custody of the parties’ minor child. See Armstrong v. Armstrong, No. 0215-19-3, 2019 Va. App. LEXIS 253 (Ct. App. Nov. 12, 2019); Armstrong v. Armstrong, No. 0227-19-3, 2019 Va. App. LEXIS 258 (Ct. App. Nov. 12, 2019).

In Armstrong, the father obtained a two-year protective order against the mother shortly after filing for divorce. Both mother and father argued that the existence of this protective order made joint legal custody untenable. Father’s counsel argued that it would be impossible to exercise joint authority to make important decisions in the child’s life without communicating, which is what would be required of the parties should the judge award joint legal custody.

Ultimately, the Court rejected the argument that the ban on direct communication made joint legal custody untenable. The trial judge awarded primary physical custody to the father with visitation to the mother, and the parties were awarded joint legal custody. This ruling was affirmed by the Court of Appeals. The Court noted that under the terms of the parties specific protective order “the parties are free to communicate through counsel or other agreed-upon third parties without violating the terms [their] protective order.”

The court also rejected the father’s contention that joint custody was not in the child’s best interest. When making a determination regarding custody or visitation of a minor child, the Court’s paramount concern is the best interests of the child. To ensure that the best interests of a child are accurately assessed, judges are directed to consider a list of ten factors outlined in Virginia Code § 20-124.3. One factor to be considered is “the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.” Virginia Code § 20-124.3(7). Although the court found that the parties were unable to communicate or cooperate in resolving disputes, it also found that the acrimony between mother and father was dissipating and that they had the capacity to cooperate.

Because each case involves unique circumstances, it is best to consult with an experienced family law attorney to explore your options. If you are facing a divorce or custody dispute and need assistance from someone with intimate knowledge of family law, please do not hesitate to contact us at 804-423-1382 or to schedule a one-on-one consultation with one of our experienced Virginia attorneys.  We would like to help.