Skip to main content
Kristen Diane Hofheimer

Kristen Hofheimer’s Answers

23 total

  • Does it mean that my daughters father will win custody of my daughter because he has a lawyer, but she's been living with me?

    My daughters father is trying to get joint custody of my daughter and I'm only willing to give him visitation rights because he's hardly around. He has a lawyer and I don't. However, she's been in my care since birth. Will the judge favor him and...

    Kristen’s Answer

    The court will consider 10 factors in making a determination of what is in the best interests of your daughter. These factors can be found by googling "Virginia Code Section 20-124.3." The fact that you have been your daughter's primary caregiver and her father has hardly been around will help you, provided he hasn't been around by his own volition. If you have denied him visitation, that will hurt you in almost every instance. However, that does not mean that you will automatically get custody because you have been the primary caregiver. The court is not supposed to make a determination based on who has an attorney and who does not. However, if your child's father has an experienced custody attorney, the attorney will likely know how to put on evidence and arguments based on the factors the judge needs to hear to make a determination, which can give your child's father a leg up. But do not give up! I have seen mothers go to court without attorneys and do very well by knowing what evidence is important to the judge and what is not, and by being organized and professional in their presentations. My law firm holds a "Custody Bootcamp for Moms" four times a year. It is an all-day seminar geared at helping moms who have to represent themselves in court to organize, prepare, and present their custody cases in court without an attorney. I will provide a link below. Most importantly, look up the 10 custody factors and figure our how to present your evidence and arguments fashioned around those 10 factors. Good luck!

    See question 
  • How can i get full custody of my child?

    i want to obtain full legal custody of my child , and I've went to court 3 times already trying to get full custody . the child boo - father has tested positive 2 out of 3 times for synthetic use of drugs including marijuana and methodicalnesse...

    Kristen’s Answer

    As the other poster has stated, legal custody has to do with making major decisions in your child's life, whereas physical custody and visitation have to do with how much time your child spends with each parent and under what conditions. While it does seem that your concerns have more to do with physical custody and visitation, it also seems as though your child's father does not have the best judgment and that goes to the issue of decision making.
    You said that you have been to court three times. I am not certain about the details of your case, but in some circumstances you can go to court several times before you have your evidentiary hearing, where you put on your evidence regarding the best interests of your child with respect to custody and visitation. If that is the case, then the judge has not yet really been in a position to make a decision, because the evidence has not yet been presented to allow the judge to make a decision.
    In a custody trial, the judge has to make a decision based solely on the admissible evidence that is presented (and the recommendation of the guardian ad litem, if there is one). You will need to be prepared to tell your story through admissible evidence and to organize your evidence and arguments in a way that is focused on the factors that the judge needs to consider in order to make a custody determination. These factors are set forth in Virginia Code Section 20-124.3 - you can google the code section to get the factors. You want to focus not simply on the bad things your child's father does or has done, but how your child is impacted by these things.
    If you are trying to get sole custody and/or you are trying to put special conditions (such as supervision) on your child's father's visitation, then I highly recommend that you consult with and retain an attorney with considerable experience and focus on child custody and visitation issues. If you cannot afford to hire an attorney, I have attached a link below to the Custody Bootcamp for Moms that my firm puts on quarterly. Bootcamp is a day-long seminar which is designed for mothers who are going to represent themselves in court to teach you what to expect in court and how to best organize and present your evidence to your judge. Good luck!

    See question 
  • How did this happen and what can I do?

    In a divorced mother of 2 . I have always had primary physical custody . My ex took me to try and get custody . January 2nd was the 1st appearance , I requested a gal . Still to my shock he was given temp custody . Our trial was yesterday . ...

    Kristen’s Answer

    First of all, if you were in Juvenile court, you can appeal it to the Circuit Court and you basically get a do-over (except that you have to live under the current order pending the appeal and if there was a GAL you will most likely have the same GAL for the appeal). The hitch is that you have to note your appeal within 10 days of the entry of the juvenile court's order. So you should go to the clerk's office right away and file your notice of appeal.
    I cannot tell you how what happened happened - I do not know what happened in court other than how the judge ruled. I suggest that you hire an attorney for your appeal - someone with significant experience in child custody matters. If you absolutely cannot afford an attorney, we put on a custody bootcamp for moms which gives mothers information about how to put on a custody case without a lawyer - it helps you to know what the judge and guardian ad litem are looking for and how to best organize and present yourself and your evidence. I have provided links to my firm's website and to the custody bootcamp website below. Remember to go and note your appeal right away. Good luck!

    See question 
  • I have primary physical custody of my son, and my current husband has taken a job out of state, requiring a move for our family.

    My son's dad won't agree to the move. We were never married, so my son has always lived with me. My son's dad does not utilize all his current visitation. He also works on weekends while our son is visiting, leaving my sons care to his stepmother....

    Kristen’s Answer

    It can be very difficult to relocate outside of Virginia and keep custody if the other parent lives here and objects to the move. You have to prove that the move will benefit your son independently from the benefit of the move to you (presumably the increased income/benefits from your husband's new job). It is helpful if your ex has not been taking advantage of his visitation while you are living here - it shows that the disruption to visitation resulting from the move will be less than if your ex was visiting frequently and making the most of the time he now has with your son. It also helps that your son wants to move. At 9 1/2, most judges will not want to speak to him, but if there is a guardian ad litem appointed, the GAL will talk to your son and should share his wishes with the court. Also, if you or your ex has extended family where you are planning to move, it will be helpful. You will want to research the schools, sports, and other extracurricular activities to show the court what is there for your son. You will also want to learn about the community and cultural opportunities where you are moving. If you son has any strong interests that are served by the community, it will be helpful to your case. I would first try to negotiate with your ex to see if he would agree to the move if he had increased visitation over the holidays and summer or if you agreed to pay the transportation costs for visitation and facilitate frequent skype calls. You may also want to see if your husband can find comparable work closer to your current home. If that does not work, then make sure you are organized and prepared to show the court all of the benefits of the move to your son and how you plan to foster the relationship between your ex and your son following the move. Good luck!

    See question 
  • What rights does a spouse have when you been married 3 yrs with division of property / assets.

    Brought buy one spouse . does the other spouse have any rights to the house at all.??? Home brought while married.

    Kristen’s Answer

    If the house was bought during the marriage but only in the name of one spouse, then the other spouse has a marital interest in the property but cannot get the house itself, only a monetary award based upon the equity in the property that is attributable to the marital investment that was made. If, for example, a downpayment was made on the house using marital funds (funds that were earned during the marriage) and/or the principal on the mortgage was paid down using marital funds, then a marital interest would be created in the equity in the house. If the spouse invested separate property (pre-marital funds, post-marital funds, inheritance or third party gift), then s/he also has a separate interest in the property. Once the percentage of marital investment versus separate investment is determined, then the equity in the house will probably be apportioned as marital and separate based upon that percentage the marital share of the house will be valued. Virginia is an equitable distribution state, so based on the factors set forth in Virginia Code 20-107.3 (you can google the code section) , the court will distribute the marital share of the equity. It isn't always a 50/50 split of the marital share of assets, but often is.

    See question 
  • What can I expect

    I have 2 kids that always lived with me & I have always been the primary caregiver. He is active duty navy & since 2003 unil our divorce in 2010 we went thru 3 seven month deployments &an unaccompanied duty station in Cuba for 15 months. I don't h...

    Kristen’s Answer

    I am unsure from your question whether an order was entered as a result of the 2011 custody petition or if his petition was simply dismissed. If there is an order from 2011, then he has to prove a material change in circumstances from the time the custody order was entered and now. If he is able to prove a material change in circumstances, then the court will do an analysis of the best interests of the children based upon the 10 custody factors outlined in Virginia Code Section 20-124.3 (you can google that to find the factors or you can order or download my free custody guidebook for moms by clicking the link to my website below). If that is the case, then evidence from prior to the last custody order will not be admissible, except to give a brief background to the new judge on the case. If there was no custody order entered as a result of the 2011 petition and his petition was simply dismissed, then he has to show a material change in circumstances from the last final custody order that was entered in order to get to the best interest analysis, and you can also present evidence from the time the last custody order was entered.
    The judge may talk to your 13 year old or may simply want the GAL to relate what the child's expressed wishes are. The more mature and articulate your daughter is in general and about what she wants, the more weight her wishes will be given. You may be at a disadvantage if you cannot hire an attorney, but the more you educate yourself and put on a case that is geared toward what the judge needs to hear in order to make a decision, the better off you will be. Also, if the GAL is favorable towards you, it will help immensely. If there was a court reporter at the last custody hearing, when your ex was caught in lies, try to find out who the court reporter was (the GAL might know if it was the same GAL in the last case, or you may contact the opposing attorney from that case and ask) and order the transcript from that hearing so that you can impeach the credibility of your ex. Again, if you cannot afford an attorney and want to educate yourself to put on the best case possible, click on the custody bootcamp link below. This is a day long bootcamp which helps moms who have to represent themselves in their custody case to be organized and prepared for their cases. Good luck!

    See question 
  • What are my rights?

    My daughter is 4 months old and I practice attached parenting including co-sleeping, breastfeeding on demand and generally just being with her all the time. Her biological father lives 4 hours away and visits her biweekly for 3-4 hours. He wants t...

    Kristen’s Answer

    I agree with the answers below, with some caution. Many judges do not understand the concept of attachment parenting and you cannot assume that they "get it" or agree with it. If you have to go to trial over this, you want to have some expert witnesses to educate your judge on the benefits of breastfeeding and attachment parenting. I have included a link below to a law review article that I wrote on the subject. I would have a lactation consultant testify about how let down and lactation works. Some judges think that you can pump indefinitely and simply do not understand the necessity of continuous contact and that you need to nurse to continue producing milk. I would also have an attachment expert testify about the primary attachment relationship - some judges do not believe that such a thing exists and think that parenting figures are fungible. Finally, if you can afford it, I would also have a pediatrician testify about the benefits of breastfeeding and the American Academy of Pediatrics' recommendations on breastfeeding. Many judges have negative (or neutral) attitudes towards cosleeping and extended breastfeeding and need to understand the benefits. I agree with the other two posters in that you want to stay out of court, if possible. Hegemony often carries the day in the courtroom, and attachment parenting is not the social norm. No one knows or cares about your child as much as you and your child's father do and courts will often not take the time to fashion a custom, detailed parenting plan such as you can do in mediation or collaboration. I have often seen success in mediation with very young children if you can make a step-up plan with visitation so that your child's father realizes that his time with your child will expand as your child gets older. Good luck!

    See question 
  • Can I sue a Court appointed Co-Parent Counselor for threatening me?

    My ex and I were Ordered by the Court to attend Co-Parent counseling. During trial at the Circuit Court level this man testified and completely lied. This man made false claims I was not being cooperative, etc. During trial I asked him question...

    Kristen’s Answer

    Your course of action depends on what you are trying to accomplish. If what you want is to prevent this from happening to other people, then a complaint to the co-parenting counselor's licensing board is probably your best course of action. If you are trying to sue for money, then you are probably out of luck. Because the counselor was appointed by the court, he is protected by sovereign immunity. However, I suspect that what you really want is to undo the damage that was done when he testified in court. If it has not yet been 21 days since the entry of the order that resulted from that hearing, then you ought to immediately file a motion to reconsider the ruling of the circuit court. The timing is very important, because your motion would need to be heard within 21 days of the entry of the order. If your time is about to run out but has not yet run out, then file a motion to reconsider immediately and ask the court to stay the 21 day period until your motion can be heard. At the hearing on your motion, you can present your evidence of the threats and perjury. Because you are dealing with a professional who is likely favored by the court (since the court appointed him), and with procedures with strict time limitations, I would not try to do this without an attorney. You should hire someone with enough time, experience, and confidence to take this on. If your 21 days have passed but you have noted an appeal to the court of appeals (or still have time to do so - your appeal has to be noted within 30 days of the entry of the order), then you cannot put on any new evidence in the appeal, but you can highlight the damage that the counselor made to his own credibility in the record when making your arguments. Good luck!

    See question 
  • Joint custody and the father is filling for full temp custody because i had to testify against an ex boyfriend in the federal sy

    I got immunity for strong backing...he has supeoned 2 witnesses and one is the exboyfrineds sister who has it out for me. One-will her testimony be used due to the conflict in interest and due to me not being charged do I have anything to worry ...

    Kristen’s Answer

    I don't think the issue is going to be whether or not you testified, but what activities you were engaged in that put you in that position. It doesn't matter so much whether you were charged, but whether your child's father can prove that you did anything or allowed anything to happen in your household that had a negative impact on your child. Your ex-boyfriend's sister will not be precluded from testifying, but you can make the argument that her testimony is biased. As for the marinol - I suppose it depends on the judge's view of marinol as a medication, why you are prescribed it, and whether it is prescribed by a doctor in Virginia. It sounds like you have a lot going on and I strongly recommend that you see an experienced custody attorney.

    See question 
  • What should i do?

    if i have sole physical and legal custody of my son and i don't feel comfortable with who's living in my sons father and it was no specific address put down for his visitation how can i go about not having my son there and at the house that was on...

    Kristen’s Answer

    If you have an order granting specific visitation to your son's father, then you are required to comply with the order until/unless it is modified. If you do not have an order granting visitation or the order simply states that your son's father is allowed reasonable visitation or visitation that is mutually agreed upon, then you could require the father to give you his address and information about other people living in the home prior to his exercising his visitation. If you are simply concerned because you don't know, it may not be worth opening the can of worms in court if you are in a jurisdiction in which it is likely that revisiting custody and visitation will result in your no longer having sole legal and physical custody. You may be able to do some simple research on the internet to find your son's father's address and find out about his roommate(s). If you are really concerned about what goes on at his house, you could hire a private investigator to observe what goes on at the father's residence during visits in order to have peace of mind while your son is there. If there is a genuine safety issue, then you can file a petition to modify visitation. You could ask for a home study to be done as part of the proceedings. I do think that you ought to consult with an attorney before filing with the court to change anything.

    See question