Virginia Custody FAQ's

Who has a right to custody?

Custody is the legal right of a child to the best care available; it is not primarily a right of either parent. The court is empowered to award sole custody to either parent, or joint legal custody with the primary residence to one parent, or joint legal and shared physical custody, where the child spends approximately equal time with each parent. The court makes such award in accordance with what the court perceives to be the best interests of the child; your interests really do not count when it comes to custody.

What is joint custody?

There is both joint legal custody and joint physical custody. Joint legal custody means that both parents jointly make major decisions in the child's life such as those pertaining to religion, education, medical needs, etc. Physical custody pertains to the physical time the child spends with each parent.

How do we determine who gets custody?

The parents can jointly agree to a custody order. If the parties are not able to come to an agreement regarding both legal and physical custody, a judge will make that determination. The court will consider such factors as:

• The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
• The age and physical and mental condition of each parent;
• The relationship existing between each parent and each child, giving due consideration to the possible involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
• 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;
• The role which each parent has played and will play in the future, in the upbringing and care of the child;
• The propensity of each parent to actively support the child's contact and relationship with the other parent, 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 matters affecting the child;
• 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;
• Any history of family abuse; and
• Such other factors as the court deems necessary and proper to the determination.

If my spouse earns considerably more money than I do, is he/she more likely to get custody?

No. Judges take account of varying incomes and award child support accordingly. One parties' income should not affect a custody decision.

What kind of visitation is the non-custodial parent likely to get?

That depends. Again, the court considers what would be in the children's best interests, and will set visitation accordingly. If the parties are able to settle the case out of court, the parties will jointly determine all visitation schedules. The court will almost always adopt any agreement reached by the parents as the order of the court.