Aside from ending a relationship, custody battles are often one of the most emotional and complex aspects of the divorce process. Whether you've gone through a divorce before or you're dealing with your first break-up, if you have minor children, you need to understand the basics of child custody in Virginia.
There are two types of custody in Virginia: legal and physical. Legal custody is a parent's right to make decisions regarding the child's welfare, including education, religion, and medical care. Physical custody refers to which parent will provide a primary residence for the child. The court can award joint custody, sole custody, or a combination of both.
If the parents get along and have good communication skills, the court may award them joint legal custody. Joint legal custody means that both parents retain joint decision-making responsibility for their child, regardless of the allocation of physical custody. In other words, even if the court awards one parent sole physical custody, the judge may award joint legal custody, meaning both parents must are involved in making decisions for the child. When parents share legal custody, neither can make decisions for the child without consulting the other first. If you can't agree on an issue, you'll need the court to decide for you.
Joint physical custody means that the parents share physical care and custody of the child, though joint physical custody doesn't always mean that the child will spend exactly 50% of the time with each parent. In some cases, joint physical custody may mean the child alternates weeklong visits at each parent's residence. In others, the child may spend every weekend with one parent, but remain with the other parent during the week while school is in session. (Va. Code Ann. § 20-124.1.)
Sole legal custody means that the court one parent has the primary authority to make decisions concerning the child. Sole physical custody means that one person retains responsibility for the care of the child. (Va. Code Ann. § 124.1.)
It's rare for the court to award one parent sole legal custody. In most cases, it's more appropriate for the parents to share decision-making authority than it is for one parent to have exclusive control over the child. It's more common for the judge to award one parent sole physical custody because it's more beneficial for the child to have one primary residence while utilizing a parenting time schedule with the other (noncustodial) parent.
Unlike some states, which presume that joint custody is in the child's best interest, Virginia law specifically prohibits a judge from beginning a custody evaluation with the presumption that joint custody is in the child's best interest. Instead, the court must make an independent evaluation using specific factors based on the child's best interest. (Va. Code Ann. § 20-124.2 (B).)
One of the easiest ways to settle a custody case is for the parents to create a plan together. If you and your ex can communicate and agree on all the terms of the custody agreement (physical and legal custody, sole vs. joint, and parenting time), and the court agrees that your arrangement is in the child's best interest, the judge will sign your agreement.
If you're close to agreeing, but you still have unresolved issues, you may consider attending mediation together. A mediator is a trained, neutral third-party who can facilitate the conversation between parents and help them reach an agreement. Mediation is confidential, and if you can't agree, you can still ask the court for help later.
When the court decides custody, it must first evaluate what is best for the child. To do this, the judge will examine the following factors:
It's important to understand that, with the exception of violence, the court weighs each factor equally when deciding custody. The judge will not give a preference to one parent over the other based on gender, either. In the end, the judge has broad discretion over custody arrangements but must state on the record the reason for the final outcome.
Virginia custody law requires that the court provide the child with frequent and continuing contact with both parents. (Va. Code Ann. § 20-124.2 (B)) If the court awards one parent primary (sole) physical custody, the judge will create a parenting time (visitation) schedule for the child and the non-custodial parent. Parenting time orders must contain a schedule for visitation, which typically includes alternating overnight weekend visits, alternating holidays and school breaks, and extending visitation in the summer.
The order will also contain instructions for pick-up and drop-off of the child, whether the child will split birthdays with each parent, and allocate travel responsibilities.
As with any custody-related issue, the court always prefers when parents communicate and create a schedule that works best for the entire family. For example, if one parent works nights during the week, but has weekends off, it would be beneficial for that parent to have parenting time on the weekends. Like custody agreements, if you present a plan to the court, the judge will sign it, as long as it's serving your child's best interests.
Although it's common for a non-custodial parent to have unsupervised overnight visitation with a child, there are some cases where it's not appropriate. If the court believes that a child's mental, physical, or emotional health are at risk of harm by spending time with a parent, it may order supervised visitation. Supervised visitation means that (typically) the time a parent and child spend together will occur at a court-approved location with a trained court-approved third party keeping a watchful eye over the parent and child.
While supervised visitation isn't ideal, it may be the only way to receive unsupervised visitation in the future. In addition to restricting the visits, the court may also place other restrictions on a parent before allowing visitation or discontinuing supervised parenting time. For example, if a parent has a history of alcohol abuse, the court may require that parent to attend and complete outpatient treatment, including Alcoholics Anonymous (AA), medical detox programs, or therapy, before revisiting the possibility of unsupervised visitation.
It's common for custody orders to become obsolete as a child grows up. For example, if a child is alternating weeks with each parent, it may become cumbersome for the child to keep up with schooling, extracurricular activities, and sports, while also moving between homes. What may have worked when your child was 5 and in kindergarten may no longer be benefiting the child who is in high school.
If you and your ex-partner agree to change the terms, the court will approve it. If you can't agree, but one parent believes it's necessary to modify the original order, that parent can file a formal request with the court. Until the court approves a new court order, it's important to understand that you must follow the original order, as written. It's a common misconception that children can refuse to attend parenting time with either parent. On the contrary, until a child is 18 years old, the court maintains the right to require that child to spend time with both parents. The custodial parent must ensure that the child follows the court orders, or risk being in violation (contempt) of the court order.
Because the court favors stability for children, the law requires a requesting parent to demonstrate that, since the last court order, there has been a material change in circumstances that justify a change in custody or parenting time. Additionally, you'll need to prove that the change in custody is in your child's best interest. (Va. Code Ann. § 20-108.)
If the court agrees that circumstances warrant a review, the judge will re-evaluate your case using the same factors as the initial determination.
If you're going through a divorce or custody battle in Virginia, and you have questions, speak with an experienced family law attorney near you.