When facing a divorce or the dissolution of a relationship that involves children, you may be wondering how it will affect your role as a parent and asking such questions as:

There is no universal answer to any of these questions. For example, many people assume that mom should have primary custody of the children if she has been the primary caregiver; however, such decision may not be warranted if dad has also been involved and a willing caregiver for the children.

When making a custody and visitation determination in your family’s situation, the court will look at several factors, but is guided by one standard: the best interest of the child.

  • Where will the children live?
  • Can we share custody?
  • What does shared custody mean?
  • What does sole custody mean?
  • Who will be the primary caregiver for the children?
  • How will the children’s schools be decided?
  • Will I only get to see my children every other weekend?
  • Will I still get to make decisions about my child’s life?

Best Interest of the Child

According to Virginia law, the court is required to give primary consideration to the best interest of the child when making a custody determination and, there is no presumption in favor of either parent.

Rather, the Court considers several factors in making a determination as to what is in the children’s best interest.

Importance of Child Custody Law

Factors Considered when Awarding Custody and Visitation

When making a custody and visitation determination, the court must consider certain factors that the legislature has determined to be important. Virginia law says the court shall consider:

1. The age and physical and mental condition of the child, including the child's changing developmental needs;

2. The age and physical and mental condition of each parent

3. The relationship existing between each parent and each child, including positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in Virginia law or sexual abuse. If the court finds such a history, the court may disregard the factors mentioned in item 6 above; and

10. Such other factors as the court deems necessary and proper to the determination.

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Based on these Factors, the Court could Entertain Information such as:

Historical and Current Primary Caregiver

  • Non-primary caregiver’s effort to be involved in children’s daily lives
  • Parent’s efforts to nurture the child’s relationship with the other parent
  • Living environment for each parent
  • Stability of each parent
  • Preference of any child age 12 and older
  • Medical issues that might impact parenting abilities or the child’s needs
  • Anger issues, excessive alcohol use, prescription drug abuse, involvement in illegal activity
  • Parent’s work schedule, including required travel
  • Religious practices, holidays and traditions
  • Proximity of the parent’s homes to each other
  • Proximity of the parent’s homes to members of the child’s extended family
  • Proximity of the parent’s homes to the child’s school, activities, and friends
  • Parent’s tendency to speak poorly about the other parent in front of the children
  • Parent’s prior abandonment or surrender of custody to another

Different Types of Custody

There are many Different Phrases used when it comes to Custody and Visitation

  • Legal custody: This type of custody includes rights and obligations to make decisions for the child regarding health care, education, religion, and other important matters.
  • Physical custody: As it sounds, physical custody encompasses the rights and obligations to care, physically, for the child.
  • Temporary custody: Custody granted while parents wait for the hearing. Also called Pendente Lite custody, it is made on the child’s best interests and does not determine the final custody decision.
  • Sole custody: This can relate to legal or physical custody. Sole legal custody means only one parent may make decisions for the child regarding health care, education, religion and other important matters. If physical custody, the child resides exclusively with one of the parents.
  • Joint custody: This can relate to legal or physical custody. Joint legal custody means both parents are involved in making decisions with the same amount of legal rights and obligations. If it is a high conflict relationship, sometimes one parent will be awarded final decision-making ability. Joint physical custody typically means shared custody.
  • Shared custody: Both parents have custodial time usually pursuant to a predetermined rotating schedule. It doesn’t necessarily mean equal time, but it can.
  • Primary physical custody: One parent will have the children a majority of the time, and the other parent will have a regular visitation schedule.
  • Split custody: When 2 or more children are involved, one child lives primarily with one parent and the other child lives primarily with the other parent.

Does a minor child ever have a say in a custody decision?

According to Virginia law, a court shall consider “[t]he reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.”

So while a child under the age of 18 cannot choose which parent to live with in Virginia, if a child is mature enough, the court may take a child’s preference into consideration.

Do I need to go to court to get custody and visitation?

The simple answer to this question is no. If you reach an agreement outside of legal proceedings or before beginning the proceedings, it will typically make for a smoother and easier process (not to mention, better co-parenting relationships). However, it is recommended that the agreement be incorporated into a court order for clarity and also to ensure compliance. In such case, if the other parent is not following the agreement, you can request the court to enforce it.

It is also wise to retain counsel to negotiate or review custody agreements. While custody matters are personal and, in the best case, decided outside of a courtroom, custody lawyers have experience with pitfalls and other legal issues that might arise and can better protect your interests.

Visitation

Visitation relates to the child’s schedule to see and spend meaningful time with the non-custodial parent. It is not limited to just the other parent. Grandparents, step-parents, and other close relatives may be awarded visitation rights if it is in the best interests of the child.

In rare cases, visitation may be restricted or supervised. The court also has the power to deny visitation if it is proven that the non-custodial parent is dangerous or has put the child at risk.

Is a custody or visitation award considered permanent?

No. The Virginia courts retain jurisdiction to review and modify all orders of custody and visitation so long as there has been a material change in circumstance. Such material change might be a relocation, remarriage, or an inability of the parents to make decisions together, for example.

If the “material change” threshold is met, then the court will evaluate if a change in custody or visitation is in the best interests of the child.

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