How Virginia law dictates matters of child custody and visitation

As in other states, Virginia places the best interests of the child first.

A battle over child custody and visitation can be agonizing for a Virginia parent facing changes in the parent-child relationship. It might be a pending divorce or separation, or the parents may never have been married.

Fears can be intense when a parent considers a potential change in where his or her child will live, how much time they will spend together and how much control the parent will have over the child's life. At stake is the parent's influence on the child's life and the quality of the child's life moving forward.

The first step to a little peace of mind is to understand what Virginia law says about child custody matters. This article will introduce the basic concepts that apply when developments in a parental relationship require a new custody or visitation arrangement.

As a preliminary matter, parents may be able to negotiate and create a custody agreement that lays out in detail custody decisions, where the child will live and a detailed schedule of time with each parent, including on holidays, school vacations and at other important times.

In a divorce or separation, the custody terms agreed to may be part of a larger, overall marital settlement agreement.

If the parties do not agree on the terms of a custody agreement, a judge will decide the custody arrangement based on the best interest of the child in question. The judge may refer the parties to mediation on the custody issues first, but if this is unsuccessful, the matter will return to court.

Custody basics

Legal custody is the parental power and responsibility to make major life decisions for the child such as those involving religion, school and health. Legal custody is often shared between the parents jointly.

Physical custody answers the question of where the child will live and what schedule will control time with both parents. Visitation, also called parenting time, is often the term use for the right of the nonresidential parent to spend time with the child. When both parents share significant physical care of the child, physical custody is joint.

If legal or physical custody are not joint, one parent will have sole legal or sole physical custody.

Virginia public policy

Virginia statute enshrines the primary guiding principle of any custody decision: the best interest of the child.

In addition, Virginia law says that when possible, custody proceedings shall "preserve the dignity and resources of family members." No form of custody is presumed to be better in a given case, but the judge is to give kids "frequent and continuing contact with both parents," if appropriate, and parents are encouraged to share in childrearing. Neither parent is to be presumed to be favored in custody matters.

Other practical matters

To determine a child's best interests, the court must consider 10 specific factors in a list, including one that allows him or her to weigh anything "necessary and proper." Required factors include:

  • Child's age, physical and mental health, and "changing developmental needs"
  • Each parent's age and physical and mental health
  • Both parent-child relationships
  • Child's needs, including other important relationships
  • Each parent's role in "upbringing and care"
  • Each parent's ability to support the child's relationship with the other parent
  • Parental ability to have a close, continuing relationship with the child and to resolve disputes concerning that child
  • Child's "reasonable preference" if the child is mature enough to express one
  • Family or sexual abuse

Virginia statute gives the judge the power to order an "independent mental health or psychological evaluation" to help determine what would be in the child's best interest. The judge may also interview a child. IF the parents or their lawyers are not present for the interview, the judge must record the interview, unless the judge thinks the recording would put the child in danger.

There are special provisions for dealing with a parent who committed a serious crime.

Anyone facing custody matters should receive comprehensive advice and guidance from an experienced attorney.

The family lawyers at Bowen Ten Cardani, PC, with offices in Richmond and Ashland, represent parents and grandparents in child custody, visitation and relocation matters.