Virginia Child Custody Guide

            This article will detail some of the most important issues regarding child custody in Virginia. The Virginia Code § 20-124 provides much of the Commonwealth’s custody law. If a specific topic is of particular interest to you, be sure to further peruse our website for other articles concerning the topic. 

Determining Custody

In large part the custody of a child is determined by the child’s best interest. The judge will consider the following factors, which are outlined in the Code of Virginia § 20-124.3:

1. The age and physical and mental condition of the child, giving due consideration to 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, giving due consideration to the 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 § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

Legal v. Physical Custody

            The Code of Virginia § 20-124.1 defines both legal and physical custody. Legal custody is the authority to make decisions relating to the care and control of the child. Decisions a parent with legal custody could resolve are, for example, education and medical care.  Physical custody is physical and custodial care of the child. This basically means that the child lives with the parent who has physical custody.

Joint v. Sole Custody

            Joint custody refers to either legal or physical custody that is shared between parents. Sole custody means that one parent controls all of legal or physical custody or both. The mix of joint v. sole custody will be determined on a case by case basis.  Married parents are presumed to have equal rights to their children. However, when a mother is unmarried it is presumed that she has sole custody over her children. For a father to rebut this presumption he must file suit.

Non-Custodial Parents

            The circumstances under which non-custodial parents may see their children take many different forms. This is due to the fact specific nature of each case. These arrangements will generally include a mix of specific weekdays, weekends, and holidays. The court could also decide that visitation needs to be supervised when it believes a parent could harm or has harmed the child. Supervised visitation must be in public or in the presence of an approved third-party. Generally, the court, when giving visitation at all, will only make the visitation supervised in extreme cases.

Will Your Child Need to Testify

            Depending on the situation your child may need to testify. In cases where the parties can come to an agreement without court intervention, a child will not have to testify. However, in more contentious cases there are situations where the child should testify.  Some circumstances require a child to testify because his insight may be integral to understanding the familial dynamic. The child’s preference on where to live may also be important depending on the child’s capacity and maturity. If testimony is needed it may be done in court or in private with the judge, known as an in-camera interview. An attorney will be able to look at the specifics of your case and give you a determination on the likelihood your child’s testimony will be needed.

Who May Seek Custody or Visitation

            According to the Code of Virginia § 20-124.2, the court shall give due regard to the primacy of the parent-child relationship but may award custody to any other person with a legitimate interest in the child. Someone may show a legitimate interest in the child through a showing by clear and convincing evidence that the best interest of the child would be served by awarding custody or visitation to the non-parent.

Temporary Orders

            Starting with separation and ending with the court orders, finalizing a divorce takes time. Therefore, pendente lite, aka temporary, orders conferring provisional support are needed. For example, these orders may award spousal support, child support, use of the marital home, custody and visitation on a temporary basis.

When a Parent Tries to Move with the Child

            If the other parent is attempting to move out of state with a child before a divorce is filed it is often suggested that you file for divorce immediately with the help of an attorney. This move will ensure Virginia has jurisdiction over the case. The Parental Kidnapping Prevention Act (“PKPA”) could also come into play in this situation. PKPA is a federal law that determines which state has jurisdiction in your child custody matter.

            If the attempted move comes after a custody order has been handed down and the parents cannot come to an agreement then the decision will go to the court. The judge will once again look to the best interest of the child.

Can the Child’s Last Name be Changed Without Permission

            If parents do not agree on a name change then the decision will go to the court. The judge will decide what is in the best interest of the child.

Increasing Your Chances at Getting a Favorable Custody Agreement

            The very first thing you must do to receive a favorable custody agreement is the most obvious, be a great parent. Once you do that you must consult with an attorney who will advocate on your behalf. With your parenting and a great attorney, the chances of a favorable outcome will be increased. Smith Strong can provide you an effective attorney that will be with you throughout the entire process answering questions and working his or her hardest to get the best result for you. Attorney Van Smith has also written a free book entitled Divorce and Custody in Virginia which can get you started on your journey. Access to this book can be found on our website under the “Info” tab. When you decide it is time to consult with an attorney, Smith Strong is available at (804) 325-1245 or (757) 941-4298.

Editorial Assistance By: Michael Gee - Law Clerk

H. Van Smith
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Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg