Do Courts Favor Mothers in
Custody Cases?

Livesay & Myers, P.C.

No, there is no presumption or preference in favor of mothers under Virginia law in custody cases. Virginia Code § 20-124.2 explicitly states that, in custody and visitation cases, “[a]s between the parents, there shall be no presumption or inference of law in favor of either.”

Instead, § 20-124.2 requires that

[i]n determining custody, the court shall give primary consideration to the best interests of the child. The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody. The 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.

Virginia Code § 20-124.3 then lays out a set of factors that Virginia courts must consider in determining the best interests of the child in a custody or visitation case. None of these factors inherently favor mothers or fathers. Several of the factors listed in § 20-124.3 do tend to favor the “primary caregiver,” but that can be overcome by some of the other factors. Although a court can consider the age and needs of a child, and the role a parent has played in the care and upbringing of a child, the Virginia Court of Appeals has held that it is reversible error for a trial court to favor mothers of children of “tender years.” Visikides v. Derr, 3 Va App 69 (1986).

At least one Virginia trial court has refused to place great weight on the identity of the child’s primary caregiver, explaining that

in nuclear families one parent generally assumes the role of primary provider for the family, and the other parent fulfills the role of primary caretaker of the children. In such circumstances, the non-providing parent would always be favored in custody disputes….[A rule favoring primary caretakers] would not only be unfair to one of the parents but would also place a premium on the quantity of time a parent spends with the children rather than on the quality of such time. What is important in determining custody is not how long a parent spends with the children but what is accomplished during that time. Further, such a rule would appear to conflict with the legislative mandate … that “as between the parents, there shall be no presumption or inference of law in favor of either.”

Crute v. Crute, 12 Va. Cir. 190, 192 (Va. Cir. Ct. 1988) (emphasis added).

For more information, see our Guide to Custody in Virginia.

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