When we say, “All work is noble,” we not only forget the other half of that quotation, but we also ignore the subtle disdain it shows for anyone not working. When Maria Montessori said, “All work is noble,” she finished the thought with, “the only ignoble thing is to live without working.” What does Virginia make of a mother who has no job? Does she “deserve” to have custody of the kids?

Virginia Law & Best Interest of the Child

Virginia law looks past the parents to the child: it is called the “best interest of the child,” and it resonates throughout custody and visitation law.

Code of Virginia § 20-124.3 lays out the guidelines for determining child custody. It mentions 10 measures for finding the right home “in the best interests of the child.” Having a job is not among them.

The closest you can find in the law is #10: “Such other factors as the court deems necessary and proper to the determination.”

The law of Virginia is not meant as a social experiment on its citizens. Virginia’s children can be happy and cared for in a $21,720-a-year household just as well as in a $150,000-a-year household.

The law also defines what the best interests of the child are, in § 63.2-1205:

In determining whether the valid consent of any person whose consent is required is withheld contrary to the best interests of the child, or is unobtainable, the circuit court or juvenile and domestic relations district court, as the case may be, shall consider whether granting the petition pending before it would be in the best interest of the child. The circuit court or juvenile and domestic relations district court, as the case may be, shall consider all relevant factors, including the birth parent(s)’ efforts to obtain or maintain legal and physical custody of the child; whether the birth parent(s) are currently willing and able to assume full custody of the child; whether the birth parent(s)’ efforts to assert parental rights were thwarted by other people; the birth parent(s)’ ability to care for the child; the age of the child; the quality of any previous relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor children; the duration and suitability of the child’s present custodial environment; and the effect of a change of physical custody on the child.

Again, no mention of income or having a job.

Pay Close Attention

A Virginia man is compelled by court order (and decency) to send over child support payments on a regular schedule. Yet the children’s mother does not seem to be working, and the children do not seem to be thriving. Perhaps you see the mother newly attired in Prada while the kids are in cast-offs.

Unfortunately, legally, painfully, you have no right to ask the mother how she is spending the children’s support payments. You have to fork over the money, but once she gets it, she can spend it as she wishes. If a pair of taupe Akris pants for herself ($895 at Bergdorf Goodman; such a find!) are her priority, so be it.

Is the Care of Your Children in Question?

If you cannot get the Virginia courts to give you custody of your children due to the mother’s unemployment, what can you do to protect them?

When you go to pick up your children at the mother’s home for regular visitation, note any issues you see:

  • Property is neglected, run-down, in disrepair
  • Home interior is filthy, dishes are piled up, children’s rooms are in disarray
  • Dangerous conditions (wiring, plumbing, roof, rot) exist
  • Children are in dirty clothes, unwashed, ungroomed
  • Evidence of drug or alcohol abuse

When you take the kids with you for parenting time, do not grill them. They deserve no third degree, and they are not your spies. They are your kids. If, however, they telegraph a problem, listen carefully and document what they say:

  • “Mom found cat food 4 cans for $3, but we don’t even own a cat.”
  • “Can we get something to eat right away? Mom hasn’t been to the store in, like, three weeks.”

Evidence of neglect or abuse is completely separate from sources of income. Wealthy Virginians neglect their kids; so do poor ones. Having a job is no magic cure for the underlying causes that could lead to removing the kids — for their own good — from the mother’s care.

Your divorce attorney is your ally in getting your kids to safety. Present your evidence of neglect or abuse to your lawyer, who can file an emergency motion for a change in custody.

Call the Child Custody Attorneys for Dads

Fighting injustice is what we do at The Firm For Men. Contact us online or telephone us at (757) 383-9184 to let us help you help you with child custody. We cannot bring suit to change custody based on employment, but we can protect your children from neglect.