VIRGINIA CUSTODY GUIDE

How is Child Custody Decided in Virginia?

Custody is decided in Virginia in one of two ways. If both parents agree on a custody schedule, the court will almost always defer to their decision. If both parents can't agree on a schedule, the court must use its own judgment to set a custody schedule.

Parents have the constitutional right to choose how to raise their children. Until a custody order is entered, both parents have exactly the same custody rights as each other. After an order is entered, parents can still disagree about the best way to raise their children. Unlike dividing property in a divorce case, custody can - and likely will - change many times through the course of your child's life.

Knowing how the courts look at these issues will help you work with the other parent to reach an agreement and help you prepare your court case if you can't.

Types of Custody in Virginia

Virginia identifies and defines two types of custody: sole custody and joint custody. The full definitions for both are in Virginia Code Section 20-124.1. Sole custody is rarely ordered by the court. In most cases, some form of joint custody is awarded to both parents.

Sole Custody

Sole custody means only one parent has responsibility for control and care of the child. That parent also has primary authority to make all decisions about the child. An award of sole custody in Virginia cuts one parent out of the equation. Sole custody is rarely granted because it infringes on a parent's constitutional rights. The court will need an incredibly good reason to grant sole custody.

Joint Custody

Joint custody can mean joint legal custody, where both parents have decision-making authority. Joint legal custody does not require both parents jointly decide and agree on every single decision. Parents do need to talk to each other about major issues before they make a decision. When it comes to "day-to-day" issues, each parent can decide for themselves. Whether a child should attend school in-person or via remote learning is an example of a major issue. The punishment for not doing their homework, however, is up to the parent on hand at the time. Joint legal custody is awarded to both parents in most custody cases.

Joint custody can also mean joint physical custody, where both parents have physical care for, and control over, the child. Physical custody deals with the time each parent has with their child. Joint physical custody is where each parent has about half of the time with the child. A joint physical custody schedule is hard to put in place in most situations, and almost impossible unless the parents live close to each other.

Joint custody can also mean any combination of joint legal and joint physical custody. The most common result is joint legal custody between the parents and one parent having primary physical custody. There are many cases with joint legal custody and joint physical custody. While not impossible, it's hard to envision a scenario where joint physical custody yet only one parent has sole legal custody.

If the parents can’t agree on legal and physical custody, the court has to step in and make a decision. To do that, the court applies the "best interests of the child" standard.

Best Interests of the Child

The best interests of the child standard appears in Virginia Code Section 20-124.3. The court must consider each of the following factors when deciding custody or visitation.

The age and physical and mental condition of the child. Your child's unique needs and abilities are very important to the court in a custody case. Instead of thinking about what a child needs, here the court considers what your child needs.
The age and physical and mental condition of each parent. How your strengths - and weaknesses - as a parent line up with what your child needs is another important factor.
The relationship between each parent and each child. This includes looking at the positive involvement each parent has in the child's life as well as his or her ability to assess and meet the child's needs. This factor looks at the skills each parent has to care for their child, and looks to see if he or she is using them to positively impact their child's life
The needs of the child, giving consideration to the child's other important relationships. Parents play the most significant role in their child's life. However, relationships with extended family members and friends are also important to a child.
The role each parent has played, and will play moving forward, in raising and caring for the child. This factor looks at each parent's "jobs" when it comes to caring for the child. Who takes the child to the doctor when he's sick? Who goes to parent-teacher conferences? Who chaperones the school field trip? The more active and involved you are in your child's life, the more likely the court will be to believe that involvement will continue.
Each parent's pattern and practice of supporting the child's relationship with the other parent, including whether a parent has unreasonably denied the other parent’s access to the child. This factor is one of the most important ones when parents are fighting over custody. Denying the other parent time with the child for no good reason puts them behind the 8-ball with the court. If you damage your child's relationship with the other parent, you may suffer the consequences.
Each parent's ability to maintain a close relationship with the child, and ability to cooperate with the other parent to resolve disputes relating to the child. Continuing to grow and strengthen the parent-child bond is of the utmost importance in a custody case.
The reasonable preference of the child, if the child is of reasonable intelligence, understanding, age, and experience. Unlike some states, Virginia never lets a child choose where he or she lives. Children that are old enough, and mature enough, to express an opinion will have that opinion weighed by the court. There's no specific age a child must be to meet this standard. If they do meet it, then the court will weigh their opinion against all the other factors.
Any history of abuse or violence. If present, a history of abuse or violence can preempt all other custody factors. The court must ignore, for example, whether a parent supports the child’s relationship with the other parent in abusive situations. This factor has the greatest potential to determine the outcome of a custody case. Allegations of abuse are taken seriously by the court, and they should be taken seriously by you as well.
Anything else the court decides is important to determining custody. This last factor is a “catch all.” The court will accept any and all evidence it thinks is important to deciding the best interests of a child.

A factor is not more or less important based on where it falls on this list. Sometimes one factor overwhelms all others and becomes the basis for a custody decision. Most of the time, however, all the factors interact with each other in the court’s decision-making process. The result is a custody schedule the court deems best for your child at the time it makes the decision.

Custody Modification in Virginia

Child custody and visitation are not finished for good until your child grows up. The courts will always try to do what is in the best interests of your child. What is best for a child can change for any number of reasons, including the passage of time. The best custody schedule for a six-year-old probably doesn't work for a sixteen-year-old.

Like an initial decision, both parents can agree to change the custody schedule. If they disagree about changing the schedule, they can bring the question to the court. Virginia Code Section 20-108 requires the court to find that a “material change” has occurred before modifying custody. The change must have occurred since the last court order was entered. It can be a change for the better, or for the worse. Whether good or bad, it must be big enough to convince the court that the current schedule is no longer best for the child.

If the court decides a material change has occurred, then the court applies the best interests of the child standard again. The court considers all the factors and determines the best custody schedule. That may be an order to change the schedule. It may also be an order that the current schedule is still in the child's best interests, even with the material change.

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