Fathers' Rights in Virginia
Fathers’ rights are an often misunderstood area of Virginia family law. At Livesay & Myers, we have seen many good, active fathers come to us after making devastating mistakes in their custody cases. We have seen men who, misunderstanding their rights or relying on incorrect legal advice, have let themselves be bullied into signing unfavorable agreements or have handled themselves badly in court. Don’t repeat their mistakes! Instead, abide by the following list of do’s and don’ts to protect your rights as a father in Virginia:
1. Do understand how Virginia courts decide custody and visitation cases. In determining custody and visitation, Virginia courts are directed by law to give primary consideration to the child’s best interests, and the specific factors a court should consider in making this determination are set forth in Virginia Code § 20-124.3. Moreover, Virginia Code § 20-124.2 sets out an explicit statutory preference in favor of frequent, continuing contacts between parents and children, and, when appropriate, shared responsibility for child-rearing. After making its decision, the court has an obligation to explain the decision to the parents, and the court must expressly give its findings of fact regarding the relevant factors listed in Virginia Code § 20-124.3. In short, although the court is given vast discretion to decide what custody or visitation arrangement is in the best interests of your child, the court’s discretion is restrained by its obligation to consider the statutory factors and the specific facts and evidence presented in your case. No undue preference may be given to either party, and the decision must be supported by the evidence given at trial.
2. Do understand that there is no presumption or preference in favor of mothers under Virginia law in custody and visitation 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.” Moreover, none of the factors set forth in § 20-124.3 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).
Moreover, 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).
3. Do understand the legal terms that are used in custody and visitation cases. It is perhaps most vital to understand the meaning of the terms legal custody, joint legal custody, sole custody, physical custody, primary physical custody, and visitation. Legal custody refers to the responsibility for the care and control of the child and the authority to make decisions concerning the child. When both parents have legal custody of a child, they are each said to have joint legal custody. Where only one has legal custody, that parent has sole custody. Physical custody involves the day-to-day care and supervision of a child and establishes where a child will live. A parent with primary physical custody will have the right to have the child with him or her, except for those periods during which the other parent has visitation. During visitation, the parent who lacks primary physical custody generally has the right to care and supervise the child without interference from the other parent.
4. Don’t sign an agreement you don’t like! You should expect a court to hold you to your word when you sign an agreement, even if you come to regret the decision later. If you sign an unfavorable agreement, understand that it can be very difficult or impossible for an attorney to relieve you from the terms of the same in the future. Once custody and visitation have been determined, a court can revisit these issues only when there has been a material change of circumstances such that a modification of custody or visitation would be in the child’s best interests.
5. If you are in the military, do recognize that you have special rights in the event you are deployed. These include the right to delegate by court order your visitation rights and the right to an expedited hearing in order to obtain the same. See Military Deployment and Child Custody in Virginia.
6. If you are unmarried and believe you may have fathered a child, do register with the Putative Father Registry. Failing to register will generally waive your right to be notified of adoption or termination proceedings unless your paternity is established or presumed under Virginia law or you were fraudulently misled by the mother under certain circumstances. For further reference, please visit the Virginia Birth Father Registry page on the website of the Virginia Department of Social Services.
For much more information, see our Guide to Custody in Virginia.
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