Visitation changes and VA law

[greenlady]

What is the name of your state? VA

My boyfriend has 1 year old twins with his ex. They have an agreement that was reached through mediation that states that he had visitation EO Saturday from 8a-5p until they turned 1 year old then it switched to EO weekend from Fri at 7p to Sun at 4p. He was staying with his mother when the mediation took place, but has since moved in with me. The twins just turned a year old and his ex has recently filed a complaint to have his overnight visitation taken away and reduced back to Sat days only (until the boys are 5 yo) due to his mother being a smoker and the ex feels the boys are in danger of her leaving a cigarette burning in bed at night. She also stated in the complaint that since he had not gotten the boys for 13 weeks, she didnt feel comfortable with them staying overnight with him. That was an outright lie as I met the boys for the first time 3 weeks before she filed the complaint, and they were with their father at that time. We have pictures of them with dates to back that.

My boyfriend just wants to spend the small amount of time he has with his children and she is trying to take that away. She filed this motion 2 weeks before his first scheduled overnight visit, and then told him he couldnt have them for the visit.

He cant keep them at our house due to the OLD Va law stating that cohabitation before marriage is illegal. She has also asked him repeatedly to sign over his parental rights, but he has refused.
So here are my questions...

1. I have read some other posts here that say the original order has to be followed until the court date, does that stand in VA too?
If so, he has already prepared a show cause for her withholding visitation that I am delivering to the court today.

2. Does she have a case to change visitation solely on those grounds?

3. Should he return to mediation and try to fight her when she doesnt want to give an inch or would he be better off waiting for court and letting the judge decide?What is the name of your state?

 

[Ohiogal]

He cant keep them at our house due to the OLD Va law stating that cohabitation before marriage is illegal. She has also asked him repeatedly to sign over his parental rights, but he has refused.

He can't sign over his parental rights. It doesn't work just like that. As for the old law -- does the court order state that he can't have them at a house he shares with a girlfriend?

So here are my questions...

1. I have read some other posts here that say the original order has to be followed until the court date, does that stand in VA too?

Yeah.

If so, he has already prepared a show cause for her withholding visitation that I am delivering to the court today.

Did he attempt to pick up the children and she denied him? Or did she just say no and he didnt' show up?

2. Does she have a case to change visitation solely on those grounds?

Not usually no. And if he is living with you then he no longer has to worry about mom burning down the house.

3. Should he return to mediation and try to fight her when she doesnt want to give an inch or would he be better off waiting for court and letting the judge decide?What is the name of your state?

He can try mediation. And then court.

 

[greenlady]

He can't sign over his parental rights. It doesn't work just like that. As for the old law -- does the court order state that he can't have them at a house he shares with a girlfriend?

No, the court order does not state that, but I spoke to my lawyer yesterday about it and I was told that since it is still officially on the books in VA, if the other party contests the situation, it can be used to change visitation.

Did he attempt to pick up the children and she denied him? Or did she just say no and he didnt' show up?

He has gone there before and she has denied him, but as for this past time, she told him through a text message that he would have the children overnight "over her dead body." So he didn't go.

Not usually no. And if he is living with you then he no longer has to worry about mom burning down the house.

No, he doesn't but he would still have to have his ON visitation at his mother's due to our cohabitation. I'm on the fence about whether he should tell her that he has moved and then have to deal with that fight, or to leave it the way it is and fight the mother smoking issue. I guess if the smoking isn't grounds for changing the visitation then he should stick with that. Although, by the time he goes to court we will have moved into our new house, and he will be legally changing his address from his mother's house to ours, so he may not have a choice but to deal with the cohabitation issue.

Thanks for your help Ohiogal.

 

[Ohiogal]

No, the court order does not state that, but I spoke to my lawyer yesterday about it and I was told that since it is still officially on the books in VA, if the other party contests the situation, it can be used to change visitation.

That law, believed to date to the nineteenth century, does not make all cohabitation illegal, only cohabitation that is "lewd and lascivious." She would have to prove that you and he are cohabitating in that manner.
"The public perception is that people who live together who are not married who have intimate relations are violating the cohabitation law," says Kent Willis, executive director of the ACLU of Virginia. He says the laws usually are not prosecuted, but challenges come up when they are cited by landlords as a reason for not renting to cohabiting couples or by government agencies refusing licenses.

He also cites the case of a day care operator whose license was initially rejected because she was cohabiting; she got her license after an ACLU challenge.

He has gone there before and she has denied him, but as for this past time, she told him through a text message that he would have the children overnight "over her dead body." So he didn't go.

So he was not denied this past time.

No, he doesn't but he would still have to have his ON visitation at his mother's due to our cohabitation. I'm on the fence about whether he should tell her that he has moved and then have to deal with that fight, or to leave it the way it is and fight the mother smoking issue. I guess if the smoking isn't grounds for changing the visitation then he should stick with that. Although, by the time he goes to court we will have moved into our new house, and he will be legally changing his address from his mother's house to ours, so he may not have a choice but to deal with the cohabitation issue.

Thanks for your help Ohiogal.

Quite frankly he needs to be honest and tell her that he has moved and fight the cohabitation issue.

 

[greenlady]

That law, believed to date to the nineteenth century, does not make all cohabitation illegal, only cohabitation that is "lewd and lascivious." She would have to prove that you and he are cohabitating in that manner.
"The public perception is that people who live together who are not married who have intimate relations are violating the cohabitation law," says Kent Willis, executive director of the ACLU of Virginia. He says the laws usually are not prosecuted, but challenges come up when they are cited by landlords as a reason for not renting to cohabiting couples or by government agencies refusing licenses.

He also cites the case of a day care operator whose license was initially rejected because she was cohabiting; she got her license after an ACLU challenge.

Ok. Thanks. That gives him a leg to stand on.

So he was not denied this past time.

So he has to physically go there and have her tell him no in order for it to count? How would he prove that?

Quite frankly he needs to be honest and tell her that he has moved and fight the cohabitation issue.

I agree now that this would be the best approach as well.