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  • Joseph Amonett

Custody and Visitation in Virginia

For issues of custody and visitation, the ultimate question in Virginia is always: What is in the child’s best interests? In virtually every case, the parents are in the best position to know what is best for their children so the attorneys at Dominion Law encourage their clients to negotiate a fair resolution whenever possible. It is almost always in a child’s best interest to have frequent and continuing contact with both parents. When parents are unable to reach an agreement about what is best, their children’s fate is left to a judge, a mere stranger, who will usually hear evidence for no more than two or three hours.

There are two types of custody recognized in the Commonwealth: Legal Custody and Physical Custody. Legal custody refers to parental decision-making authority (think healthcare, religious, and school-related decisions). Courts oftentimes award joint legal custody to parents. This means that each parent may make important decisions on behalf of the child. In rare occasions, a court may award sole legal custody to one parent. Physical custody refers to where a child primarily resides. Primary physical custody is regularly awarded to one parent, but a court may award joint or shared physical custody where, for example, a child lives with both parents on an alternating-weekly basis.

Where one parent has primary physical custody, the other parent will usually have visitation (also known as parenting-time). An order for visitation can be very detailed or simply left open for the parties to determine in the future as they may agree. Parents who can successfully communicate and co-parent may not need a stringent schedule, whereas other parents may require a concrete plan with specific parameters. Visitation schedules that are set by the parties rather than the courts are generally more flexible by their nature because the parents can work out the details together.

In all cases of custody and visitation, Virginia Code § 20-124.3 sets out the factors a court must consider when making a decision. Those factors include:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs; 2. The age and physical and mental condition of each parent; 3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child; 4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members; 5. The role that each parent has played and will play in the future, in the upbringing and care of the child; 6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child; 7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; 8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference; 9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and 10. Such other factors as the court deems necessary and proper to the determination.

Because the best interests of a child may change during the course of childhood, Virginia allows the courts to modify custody and visitation orders. When a parent files a motion to amend a custody or visitation order, he or she will need to prove that there has been a material change in circumstances since the entry of the last order that requires a new order. If a material change is proven, a court will then turn once again to the best interests of the child factors listed in Virginia Code § 20-124.3 to ultimately enter the new order.

If you are looking for assistance with a custody or visitation matter, contact a family law attorney at Dominion Law to review your specific situation.

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