Guide to Custody in Virginia
If you are facing a custody battle, nothing is more important than securing a custody and visitation arrangement that is in your child’s best interests. A solid understanding of your legal footing will be essential. That’s why the attorneys at Livesay & Myers, P.C. have put together this Guide to Custody in Virginia—to give you the information you need to advocate for your child’s best interests.
Types of Custody
The two primary types of custody in Virginia are “sole custody” and “joint custody,” both of which are defined by Virginia Code § 20-124.1. Joint custody is much more commonly awarded than sole custody.
In a joint custody arrangement, both parents assume responsibility for the physical, emotional and moral development of the child, and the parents share rights and responsibilities for making decisions that affect the child. Virginia Code § 20-124.1 defines joint custody as (1) joint legal custody, (2) joint physical custody, or (3) “any combination of joint legal and joint physical custody which the court deems is in the best interest of the child.”
Joint legal custody has to do with decision-making. The child may live primarily with one parent—the “primary physical custodian”—but the parents communicate and cooperate to make important decisions in the child’s life jointly. Virginia Code § 20-124.2(B) states that “[t]he court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children.” In many cases that translates to the court ordering a joint legal custody arrangement.
Joint physical custody essentially refers to situations where the child is splitting time between both parents. Examples include: (1) the child living with both parents on an alternating weekly basis (“one week on, one week off”) and (2) the child living with one parent during the school year and the other parent during the summer. Joint physical custody is ordered much less frequently than joint legal custody, and in very particular circumstances. It is much more common for a court to order primary physical custody to one parent or the other, with joint legal custody between the parties.
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 rarely awarded in Virginia custody cases. It is typically limited to extreme cases of complete discord within the family, such as:
- where the parents simply cannot communicate or agree with each other;
- where one parent continually undermines the other and engages in parental alienation;
- where one parent has abused the child; or
- where visitation or access to the child has been unreasonably denied.
These sole custody situations are rare. Virginia courts will order joint or shared legal custody in most cases, even where the parents do not get along particularly well with each other, on the basis that it is best for the child to have both parents involved in the child’s life. The parents then have to put aside their own differences and try to work together for the sake of the child.
For more information, see Sole Custody of Children in Virginia.
Other Types of Custody
The child support provisions of the Virginia Code mention the terms “shared,” “split” and “divided” custody, but those terms are not defined in the Code. Most custody orders either award one party sole custody, or establish joint legal custody with one party being the primary physical custodian.
How Do Courts Decide Custody Cases?
Despite a common misconception, there is no presumption or preference in favor of mothers under Virginia law in custody cases. Instead, courts in Virginia are legally required to base decisions regarding custody and visitation on the best interests of the child, applying the factors listed in Virginia Code § 20-124.3. Generally speaking, the six most important factors considered by Virginia courts in deciding custody and visitation cases are:
- The Status Quo. The power of the status quo can’t be overstated. If one party stays in the marital home with the children, they will start with a leg up. They can argue that the children are comfortable in a familiar environment, with established neighborhood friends nearby and the peace of mind found in maintaining the same school. Judges will typically strive to make a divorce as painless for a child as possible, and believe that continuing similar routines in familiar places will aid in the transition.
- Primary Caregiver. The judge will want to hear which parent is primarily responsible for day-to-day events and activities with the children, including medical care (doctor’s appointments, prescriptions), educational involvement (homework, parent-teacher conferences, field trips), extracurricular activities (coaching Little League, being a Girl Scout den leader, driving responsibilities), morning and bedtime routines, and even meals and laundry. Obviously, a stay-at-home parent will have an advantage in most of these categories, but that can be overcome by some of the other factors. For an analysis of this important factor, see The Primary Caregiver in Virginia Custody Cases.
- The Parent-Child Relationship. Courts will consider the bond between each parent and the children. This is often difficult to quantify, but evidence of having activities with the child (going for hikes, building model trains together, reading bedtime stories, watching sports together) can help to demonstrate a strong and lasting connection. In some cases, one parent takes steps to actively degrade the child’s relationship with the other parent. For a discussion of how that can impact the court’s custody determination, see Parental Alienation in Virginia.
- Which Parent is More Likely to Co-Parent Willingly and Effectively? Even if one parent can “check all of the boxes” with the above factors, this fourth factor can occasionally override them all. Which parent is more likely to keep the other in the loop on meetings, recitals, practices and games for the children? Who is more likely to copy the other parent on emails with teachers or administrators? Which parent will willingly consult with the other before making an important decision in the child’s life?
- The Reasonable Preference of the Child. Virginia Code § 20-124.3 instructs the court to consider the child’s “reasonable preference” as to custody and visitation, “if the court deems the child to be of reasonable intelligence, understanding, age and experience.” Whether the court will consider the child’s preference, and if so how much weight the court will give that preference, and how that preference might be communicated to the judge, can all vary greatly from case to case in Virginia. For more information, see Child Preference in Virginia Custody Cases.
- Any history of violence or abusive behavior. This factor also has the potential to overwhelm all others, as the court will not place a child in harm’s way.
For information on some common preconceived and mistaken notions of what Virginia courts consider in deciding custody and visitation, see:
Temporary Custody and Visitation Orders
The status of child custody, when the parents of a child separate, is unsettled until an order for child custody is entered by a court. A “pendente lite” (temporary) custody and visitation order may be used to settle custody and visitation issues until the parties can fully litigate or settle their case. For more information, see Temporary Custody and Visitation Orders in Virginia.
Negotiation vs. Litigation
Many custody and visitation cases are resolved by negotiation between the parties. Married parents who are separated may include their agreed upon custody and visitation arrangement in a Separation Agreement. If and when the parents proceed with a divorce, that Separation Agreement would then be incorporated into a final divorce decree from the circuit court. Alternatively, parents who are not living together (whether or not they are married) may submit an agreed upon “Consent Custody and Visitation Order” to be entered by the juvenile and domestic relations district court (J&DR court).
If the parents are unable to reach an agreement, either of them may ask the circuit court to decide custody and visitation as part of any divorce filing. Alternatively, either parent may file petitions for custody and visitation in J&DR court.
Depending on the jurisdiction, the parties may not obtain a resolution to their custody and visitation dispute for several months, or in some cases a year or more. Also, custody cases that proceed all the way to trial can be very expensive and emotionally draining as well. Although some parties just cannot agree on custody and visitation and have no choice but to litigate those issues in court, many parents are able to compromise, enter into a consent order, and avoid a custody hearing.
For more information, see Consent Custody and Visitation Orders in Virginia.
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 country, relocation has steadily become a hot topic in custody cases. For answers to your questions on relocation, see Relocation in Virginia Child Custody Cases.
Interstate Custody and Visitation
Parties in custody or visitation disputes often find themselves in two separate states. In almost all interstate custody cases, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) will dictate which state has jurisdiction to rule on any custody or visitation issues between the parties. The UCCJEA provides which state will have jurisdiction for both an initial custody determination and a modification of a prior custody order. For more information, see The UCCJEA in Virginia Custody Cases.
Denial of 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.
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 Purpose of the Guardian ad Litem in Virginia.
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. For answers to your questions on grandparent custody and visitation, see Grandparent Rights in Virginia.
Discovery is a pre-trial procedure for obtaining information and evidence from the other party or non-parties to a lawsuit. In Virginia custody cases, discovery may include interrogatories, requests for admissions, requests for the production of documents, subpoenas and depositions. For more information, see Discovery in Virginia Family Law Cases.
COVID-19 Issues in Custody and Visitation
The Coronavirus Disease 2019 (COVID-19) pandemic is raising special challenges related to child custody and visitation in Virginia. Our attorneys are helping clients all across Northern Virginia navigate these issues. For more information, see How Does COVID-19 Affect Your Virginia Custody and Visitation Order?
Our Custody Lawyers
Livesay & Myers, P.C. has a team of experienced custody lawyers across five office locations: in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg-Stafford. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.