Child Custody Lawyers in Northern Virginia
The highly-rated child custody lawyers at Livesay & Myers, P.C. represent clients in Fairfax, Loudoun, Prince William, Manassas, Alexandria, Arlington, Fredericksburg, Stafford, Spotsylvania and all across Northern Virginia.
Our attorneys are veterans of many tough custody battles, fighting on behalf of mothers, fathers and grandparents in custody cases across Northern Virginia. We have expertise both with initial custody determinations and also cases involving relocation of custodial parents or modification of prior court orders. Our attorneys are also experienced with cases involving home studies, custody evaluators, and guardians ad litem.
Types of Custody in Virginia
It is important for any parent facing a custody or visitation case in Virginia to understand the differences and similarities between the different types of custodial arrangements under Virginia law:
Sole Custody. With “sole custody,” one parent assumes the major role in the physical, emotional, and moral development of the child. The custodial parent has primary authority to make all major decisions affecting the child, who lives primarily with this parent. Sole custody is defined under Virginia Code § 20-124.1 as an arrangement whereby “one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.”
Joint Custody. In a “joint custody” arrangement, both parents assume responsibility for the physical, moral, and emotional development of the child, and there are shared rights and responsibilities for making decisions that affect the child. Virginia Code § 20-124.1 provides:
“Joint custody” means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
Shared Custody. Virginia Code § 20-108.2(G)(3) states that the shared custody child support guidelines will only apply when each parent has “physical custody” of a child for more than 90 days. Under these “shared support” guidelines, the primary custodian will typically receive less child support than under the regular child support guidelines. It is therefore important to understand how days are calculated for purposes of the “90 day rule.” Virginia Code § 20-108.2(G)(3) states that a “day,” for purposes of application of the shared custody child support guidelines:
…means a period of twenty-four hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than twenty-four hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period.
The shared custody support guidelines may not apply when a parent who has 90 days of visitation has failed to exercise them. In addition, the parents themselves may agree not to apply the shared custody child support guidelines even though the 90-day threshold has been met.
Split Custody. In a split custody arrangement, each parent has primary or sole custody of one or more of the children. Virginia Code § 20-108.2(G)(2) explains that split custody, for child support purposes, is an arrangement in which “a parent is a custodial parent to the children in that parent’s family unit and is a noncustodial parent to the children in the other parent’s family unit.”
Divided Custody. The term “divided custody” describes the status of a child who lives alternately with one parent and then the other for specified periods of time, with each parent having primary custody rights while the child resides with that parent.
The Best Interests of the Child Test
Courts in Virginia are legally required to base decisions regarding custody and visitation on the best interests of the child. Virginia Code § 20-124.3 lists a number of factors that the judge should consider in deciding what is in the child’s best interests. You should go over those factors with your custody lawyer, and determine which factors will favor you in your case, and which will favor the other parent.
Although each of the factors listed in § 20-124.3 are important, in our experience the following factors are among the most important to the judge’s determination:
Inertia or the “Status Quo.” If the child has been living with one parent in a stable environment, and doing well in that environment, then that parent has a tremendous advantage. In these circumstances, the judge will usually not want to “upset the apple cart.”
Primary Caregiver. The parent who has put in the most time caring for the child, who has been the “primary caregiver,” has an advantage. However, Virginia law requires courts to look at the whole picture in deciding custody cases, and not determine custody solely on the primary caregiver factor. See The Primary Caregiver in Virginia Custody Cases for an analysis of this important factor.
Preference of the Child. Depending on the age and maturity level of the child, the child’s preference may be very important. Generally speaking, the older and more mature the child, the more important the child’s preference becomes. Some judges might be curious to meet a child age 6-8. Most judges will probably want to interview a child age 8-13. At around age 13, the child’s preference will probably be regarded as controlling by the judge.
For much more information on how courts determine the best interests of the child in Virginia custody cases, see How Do Courts Decide Custody Cases In Virginia?
Denial of Visitation
Parents who take it upon themselves to deny visitation rights without following the proper channels through the courts, do so in violation of Virginia law. Even in cases of non-payment of child support, it is simply not appropriate for a parent to arbitrarily deny court-ordered visitation.
A parent who refuses to allow another parent visitation that has been court-ordered risks being found in contempt of court, thus subjecting themselves to possible jail time or a fine. Denial of visitation by a custodial parent can also result in the court transferring custody to the other parent.
It is also important to understand that the noncustodial parent’s failure to pay court-ordered child support does not legally justify the custodial parent’s denial of visitation. The reverse is also true: denial of visitation does not justify non-payment of child support.
Modification of Custody and Visitation
Custody and visitation issues are never permanently settled (until the children are grown). As children grow, parties remarry, and priorities change, a modification of custody and visitation may be required.
Virginia Code § 20-108 allows for modification of a custody or visitation order when (1) there has been a material change of circumstances and (2) it is in the best interest of the children to modify custody or visitation. The change of circumstances must have taken place after the entry of the last order in the case—it cannot be based on testimony or evidence that pre-dates the entry of the last order.
The change of circumstances may be either positive or negative. A positive change could be a parent’s remarriage or getting a new job with either a higher salary or more flexible work schedule. A negative change could be a child developing behavioral problems, one parent struggling with substance addiction, or a criminal conviction of a parent. As stated above, one parent’s denial of court-ordered visitation may also be a material change of circumstances allowing for a modification of custody.
If the court determines that there has been a material change of circumstances, it will then proceed to examine the best interests of the children by applying the factors listed in Virginia Code § 20-124.3. These are the same factors that were considered at the initial custody hearing, and include the age of the children; the health, needs, and relationship that each child has with each of their parents; and for any child of sufficient age, the child’s preference as to custody.
With more and more parents finding the need to move due to family connections, changes in employment and varying costs of living in different states across the county, relocation has steadily become a hot topic in custody cases. For answers to your questions on relocation, see Relocation in Virginia Child Custody Cases.
Grandparent Custody and Visitation
Virginia law allows any “person with a legitimate interest ” to petition for custody or visitation. The Virginia Code specifically defines “persons with a legitimate interest” to include grandparents. Our custody lawyers are experienced in representing grandparents in custody and visitation disputes, particularly where both parents are unfit or “out of the picture” for one reason or another. For answers to your questions on grandparent custody and visitation, see Grandparent Rights in Virginia.
Home Studies and Guardians Ad Litem
The judge may not be the only official with whom you will have to deal in your custody and visitation case. First, the judge may order “home studies” in your case, in which a social worker is sent to the homes of the contending parents. The social worker will evaluate each home, speaking with each parent (and sometimes the child), and report back to the judge. Second, the judge may appoint a guardian ad litem, a lawyer who shall be tasked with representing the best interests of the child. The guardian ad litem will speak with each parent and the child, and make a recommendation regarding custody and visitation to the judge. For more information, see The Role Of The Guardian Ad Litem In Your Case.
Our Custody Attorneys
Livesay & Myers, P.C. has a team of experienced child custody lawyers in Northern Virginia, each of them practicing exclusively family law. Be sure to read our client reviews, then examine the profiles of each of our custody attorneys to find the one who is the best fit for you.
Fall Consultation Special. For a limited time, schedule an initial 1-hour consultation with one of our custody lawyers for just $150. Contact us today to take advantage of this discounted rate.