If you have a child custody or visitation dispute on your hands, you’ll want to be aware of what elements the court will consider in making a determination. Contrary to popular belief, courts no longer have legal justification to favor the mother over the father. Instead, Virginia Code Section 20-124.3 provides a list of factors that courts must weigh before ruling on what custody and visitation arrangement is in the best interests of a child.
From my experience, these are the six most important factors considered by Virginia courts in deciding custody and visitation cases:
- 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.
- Which parent takes the lead? 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.
- 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.
- 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. If one parent seeks to destroy the other parent’s relationship with the children, and it can be proven, the court will react strongly to such behavior. 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? Has either parent disparaged the other in the presence of the child, or allowed others to do so? Has either parent used the child as a conduit for inappropriate information from parent to parent, or as a message delivery system regarding the divorce? Is there written or recorded evidence of this behavior? If so, it could be a game changer. Judges typically want to reward good behavior and punish bad behavior. And they don’t want to award primary custody to a parent who will abuse the position of power and authority that the court has granted them.
- The reasonable preference of the child. Virginia Code Section 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.” However, this is a high bar to clear, and having your child testify can easily backfire. Many judges follow the mantra that “whoever calls the child as a witness, loses.” This is presumably based on a theory that a parent who is willing to put the child on the witness stand is not really pursuing the child’s best interest. So, proceed with caution in this area. Is the child a mature teenager? Will the child’s reasoning for his or her preference be compelling? Can the testimony take place “in camera” (typically in judge’s chambers or out of the earshot of both parents)? The answers to these questions can determine the wisdom of putting your child on the stand, which should be a rarely-employed tactic 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.
If you are facing a custody or visitation dispute in Virginia, an experienced attorney can help you determine how the above factors are likely to play out in your case. The custody lawyers at Livesay & Myers, P.C. are experienced in the nuances of building and presenting complex custody and visitation cases. Contact us today to schedule a consultation with an attorney in one of our three locations: Manassas, Fredericksburg or Fairfax, Virginia.