Determining Child Visitation Schedules in Virginia

Introduction

     In Virginia, courts are the ultimate authority in determining child visitation schedules. When a court improperly delegates this authority, such as giving one parent, a third party, or even a therapist the power to determine visitation without clear guidelines, it can create confusion, unfairness, and legal grounds for appeal. Understanding the limits of a court’s discretion in delegating determination of a visitation schedule is critical for protecting parental rights and ensuring the best interest of the child.

Delegation of Visitation: What the Courts Can and Cannot Do

     Under Virginia law, visitation rights must be determined by the court itself—not assigned to another individual or party without proper judicial oversight. Courts may consider recommendations from professionals or the preferences of a parent, but the ultimate decision must be made by the judge, not delegated entirely.

     Improper delegation often occurs when orders give one parent the sole authority to determine if, when, or how visitation occurs, without setting objective standards or a clear schedule. This can effectively give one party veto power over the other's parental rights, which Virginia courts have ruled is not permissible.

Examples

     Virginia appellate courts have consistently struck down visitation orders that delegate too much control to a parent or third party. For example, in Kelso v. Kelso, 96 Va. Cir. 22 (2017), the court found that an order allowing the mother to determine whether the father could exercise visitation based on his sobriety, without setting clear standards, was an improper delegation of judicial authority.

     Similarly, in Robinson v. Robinson, 54 Va. App. 87, 675 S.E.2d 873 (2009), the Virginia Court of Appeals overturned a visitation order that gave a therapist the authority to decide when the child should begin unsupervised visitation with the non-custodial parent. The court held that while professionals may inform the court's decision, the actual decision-making authority must rest with the judge.

     These cases illustrate that while the court may be guided by external input, it cannot abdicate its duty to make the final call on visitation.

Conclusion

     Visitation decisions belong to the court, not therapists, custodial parents, or third parties. When that responsibility is improperly delegated, it undermines the legal process and can damage parent-child relationships. Virginia courts have made it clear: while judges may be informed by others, they cannot transfer their responsibility. If your visitation rights are being controlled by someone other than the court, it may be time to seek legal help. If you would like to discuss your options in your Virginia case, please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg) to discuss how our attorneys can be of assistance.

Special thanks to Owen Togna for editorial assistance in drafting this article.