Few things are more frightening for someone involved in a custody case than hearing “I’m going to get full custody of the kids!” The idea of losing time with your children is terrifying. But in Virginia, threatening to pursue “full custody” is far easier than actually getting it.
Courts strongly favor children maintaining meaningful relationships with both parents. Awards of sole legal and sole physical custody are uncommon unless there is credible evidence of abuse, neglect, abandonment, or another danger to the child.
In this article, we unpack these emotional threats and discuss how custody and visitation decisions are actually made in Virginia courts.
If There Is a Custody and Visitation Order
A parent cannot unilaterally change a court-ordered custody arrangement. To modify an existing order, they must prove in court that:
- there has been a material change in circumstances since the last custody order; and
- the requested change is in the best interests of the child
This standard comes from Keel v. Keel, 225 Va. 606 (1983) and is reflected in Virginia Code § 20-124.2 and § 20-124.3.
Courts interpret the “material change” standard fairly strictly. Examples may include:
- a parent relocating a significant distance
- a change in the child’s health or educational needs
- substantial changes in a parent’s work schedule or living conditions
- new evidence of family abuse, neglect, or illegal substance use
However, everyday disagreements, arguments, or new romantic relationships typically do not meet this threshold.
So if your ex says “I’m filing for sole custody! I’m taking the kids!” they absolutely can file in court—but filing isn’t the same as winning. Without evidence supporting a material change and a clear benefit to the child, the existing arrangement usually remains in place.
In short, when a court order already exists, it takes time, evidence, and a judge’s ruling—not just angry threats—to undo it.
If There Is Not a Custody and Visitation Order
When there is no order in place, things can feel murkier. But the law is clear—both parents have equal legal rights to the child until a court decides otherwise. See Williams v. Williams, 256 Va. 19, 501 S.E.2d 417 (1998). Custody and visitation disputes that arise when no court order is in place can create significant emotional pressure and posturing. Nonetheless, no parenting arrangement can change automatically.
The parent threatening to take custody must:
- file petitions for custody and visitation
- have the other parent properly served
- wait for a hearing, which can take several months
- gather and present winning evidence to a judge
- wait for a written order in their favor
Until these processes happen, either parent can unilaterally take or withhold the child until the court rules otherwise (although it may not be advisable to do so).
The court will ultimately decide custody based on the child’s best interests, including stability, caregiving history, and each parent’s ability to cooperate with the other. A parent making hostile threats or unilaterally withholding the child generally does not appear favorably to the court.
In short, without an order in place, both parents stand on equal footing, and custody and visitation can only be codified through the formal court process. If threats and conflict are increasing, it is often wise to seek a custody and visitation order to provide structure and stability for the child and the parties.
Summary: How to Respond to “I’m Taking the Kids!”
In either scenario, threats feel powerful, but they are legally limited. Here is how you should handle these emotionally charged situations:
- stay calm and document messages and interactions
- follow your court order if you have one—do not withhold visitation
- if there is no court order, maintain consistent routines for the child
- consult an attorney for guidance about your specific situation
- if the child is in immediate danger, involve law enforcement and your attorney
Need Help?
If you’re navigating a custody and visitation dispute, an attorney can help you understand your rights. The family law attorneys at Livesay & Myers, P.C. are experienced with all custody and visitation matters and how they are handled in the courts of Northern Virginia. Contact us to schedule a consultation today.