General Guide to Virginia Child Custody and Visitation Laws
Custody battles present some of the most emotionally charged and legally complicated issues. Basic knowledge of Virginia child custody laws is necessary to help you make the best decisions that are in the best interest of your children. That is why, Raheen Family Law has put together this General Guide to Virginia Child Custody and Visitation Laws to give you the basic knowledge of some of the common issues in custody cases.
Types of Custody
There are two types of custody in Virginia, legal custody and physical custody. Legal custody involves major decision making concerning the child, such as health, education, religion, etc. Physical custody refers to which parent will the child reside with.
In a custody case, the court can award any of the following: joint custody, sole custody, or a combination of both.
Virginia Code § 20-124.1 defines joint custody as (i) joint legal custody; ii) joint physical custody; or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
Under joint legal custody, both parents have decision-making authority for their child. The court may award joint legal custody regardless of the physical custody arrangement. In other words, even if one parent has sole physical custody, the court may still order joint legal custody so both parents are involved in making decisions for the child. For joint legal custody to work, the parents must be able to co-parent together. Neither parent can make a major decision for the child without first consulting with the other parent. If one parent is being difficult with a major decision that is in the child's best interest, the other parent can file a petition with the court for a determination.
Joint physical custody means where both parents share physical and custodial care of the child. Some examples of shared physical custody schedule include (a) “one week on, one week off” where the parents alternate custodial time on a weekly basis; (b) 2-2-3 schedule where the child lives with one parent for 2 days of the week, spends the next 2 days with the other parent, and then returns to the first parent for 3. The next week it switches; and (3) the child is with one parent during the school year and the other parent during the summers.
It is more common for the court to award joint legal custody with primary physical custody to one parent. Joint physical custody often works under certain circumstances. For example, the parents sharing physical custody have to be living in close proximity to one another so it is not too burdensome for the child to commute to school or activities. This is especially true for “one week on, one week off” and 2-2-3 custodial schedule. In addition, the parents should also be able to and willing to co-parent with one another.
Sole legal custody means that one parent has the primary authority to make decisions concerning the child. Sole physical custody means that one parent retains the responsibility for the care of the child. (see Virginia Code § 20-124.1). Sole legal custody is rarely awarded. The courts want both parents to be involved in decision making for the child.
How Does the Court Determine Custody?
Between two parents, there is no presumption in favor of either parent (see Virginia Code § 20-124.2). The court decides custody and visitation based on what is best for the child. To do this, the court looks at a series of factors, which are the following:
- the age and physical and mental health of the child, giving consideration to the child's changing developmental needs;
- each parent's age and physical and mental health;
- the relationship existing between each parent and the child, giving consideration to the positive involvement with the child's life, the parent's ability to accurately assess and meet the child's emotional, intellectual and physical needs of the child;
- the child's needs, including a relationship with siblings, peers, and extended family;
- the role that each parent has played and will play in the child's upbringing;
- the propensity of each parent to actively support the child's relationship with the other parent (including whether either parent has a history of denying the other parent access to the child);
- the willingness of each parent to maintain a close and continuing relationship with the child;
- both parent's ability to cooperate in and resolve disputes regarding the child;
- the child's reasonable preference, if the court finds that the child is of reasonable intelligence, understanding, age, and experience to express a preference;
- whether either parent has a history of child or domestic abuse; and
- any other factors the court finds important to the case. (Va. Code Ann. § 20-124.3.)
Judges try to limit the effect of the divorce on the children as much as possible by maintaining circumstances as close to before the parents' separation and divorce as possible. For example, if awarding primary physical custody to one parent will allow the children to continue to attend the same school, live in the same neighborhood, have the same friend, etc., the court may be inclined to award primary physical custody to that parent.
What is Visitation?
Virginia law requires that the courts have a frequent and continuing contact between the child and both parents, when appropriate (See Virginia Code § 20-124.2.) Therefore, if the court grants one parent primary physical custody, the court will grant parenting time (i.e. visitation schedule) for the other (noncustodial) parent. The visitation schedule can vary depending on the facts of the case. The visitation schedule may include custodial time during every other weekend, with alternating holidays, and extended visitation during the summer.
In some cases, the court may order supervised visitation. For example, if the court believes that the child's physical, mental, or emotional health are at risk of harm while in one parent's care, the court may grant that parent supervised visitations. The visitations are supervised by a third party approved by the court. Some jurisdictions offer third party institutions where the supervised visitations can take place.
Temporary Custody and Visitation
During pendency of a case involving custody and visitation, either party may request the court to decide temporary custody and visitation. However, absent rare circumstances, not all jurisdictions will hear temporary custody and visitation issues. Therefore, you should consult with a lawyer to see whether the court in your jurisdiction will hear temporary custody and visitation issues.
Grandparent Custody and Visitation
Virginia law allows any “person with a legitimate interest” to petition the court for custody and visitation of a child. Grandparents are considered persons with legitimate interest. Therefore, grandparents can petition the court for custody and visitation of their grandchild. See Grandparent Rights in Virginia for more information.
Appointment of a Guardian Ad Litem
In custody cases either parent may ask the court to appointment a Guardian ad Litem for the children. The court may on its own also appoint a Guardian ad Litem. The Guardian ad Litem is an attorney who represents the best interest of the children. The Guardian ad Litem will speak to the child and the parents. The Guardian ad Litem may meet the child and the parties at their residences. The Guardian ad Litem may also obtain child's academic of school records as part of the investigation. The Guardian ad Litem may file certain motions and/or pleadings requesting certain relief in the best interest of the child. At the end of the case, the Guardian ad Litem will give his or her recommendation to the parties and to the court.
Modifying Custody Order in Virginia
Child custody and visitation issues are never permanent and are always subject to modification as circumstances change.
Under Virginia Code § 20-108 the courts have the authority to modify a custody or visitation order when (1) there has been a material change of circumstances that justify a change in custody or parenting time; and (2) it is in the best interest of the children to modify custody or visitation.
The change in circumstance must be after the date of the last custody and visitation order. Some examples of change in circumstances include a parent's remarriage, more flexible work schedule, a parent's move to live closer to the child, one parent struggling from substance abuse addiction, a parent getting incarcerated, etc. Under Virginia Code § 20-108, intentional withholding of visitation by a parent without just cause may constitute a material change of circumstances justifying a change of custody.
If the court finds that there has been material change in circumstances warranting a change in custody, the court will then go through the factors listed in Virginia Code § 20-124.3 to determine whether the change requested is in the child's best interest. These are the same factors the court looks at when making the initial custody and visitation determination (see the above paragraph “How Does the Court Determine custody?”).
Violation of Custody and Visitation Order
If one parent violates the custody and visitation order, the other party who wants to enforce the order can file a Rule to Show Cause against the violating parent. If the court finds that the parent violated the custody order, the court may hold that parent in contempt of court. As part of the finding of contempt, the court has the authority to fine the violating parent and/or order jail time.
Interstate Custody and Visitation.
Some custody cases involve multiple states, such as one of the parents may be residing in a different state or the initial custody order was entered by another state and a parent now wants to modify the prior order in Virginia. In such cases, the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) will dictate which state has jurisdiction to make an initial custody determination and a modification of a prior custody order. If your case involves interstate custody and visitation issues, be sure to discuss it with an attorney to determine whether you can proceed in Virginia.
Child custody and visitation cases are legally complicated and emotionally stressful. You need an experienced attorney to advocate for you and help you achieve the outcome that is in the best interest of your child. At Raheen Family law we offer the knowledge, dedication, and guidance your custody case will require. Contact us today to schedule a consultation.