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 may award joint custody, sole custody, or a combination of both.
If the parents get along and have decent communication skills, judges usually award them joint legal custody. Joint legal custody means that both parents have the right to participate in making decisions for their child, regardless of where the child lives. For instance, the judge may award sole physical custody to one parent but joint legal custody to both. When parents share legal custody, neither can make important 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 it doesn't always mean that the child will spend exactly 50% of the time with each parent. In some cases, the child might alternate week-long 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 § 20-124.1 (2022).)
Sole legal custody means that only one parent has the authority to make decisions concerning the child. Sole physical custody means that only one parent retains responsibility for the the child's care and control.
It's rare for the court to award sole legal custody. In most cases, it's more appropriate for the parents to share decision-making authority than it is for only one parent to have this authority. It's more common for judges to award one parent sole physical custody, when they believe the child would benefit from having only one primary residence while still being able to visit with the other (noncustodial) parent.
Unlike some states, where the laws assume that joint custody is in the child's best interest, Virginia law specifically prohibits judges from beginning a custody evaluation with the assumption that any particular type of custody is in the child's best interest. Instead, judges must make an independent evaluation using specific factors based on the child's best interest. (Va. Code § 20-124.2(B) (2022).)
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 provisions in a custody agreement (physical and legal custody, sole or joint, and parenting time), the judge will approve your agreement if the arrangements appear to be in the child's best interest.
If you're having trouble agreeing on all the custody details, you may consider attending mediation together. If you've already filed for divorce without a custody agreement, you'll at least have to attend an orientation session to learn about mediation, and you might be ordered to participate in mediation. (Learn more about how divorce mediation works in Virginia.)
When you need to have the court resolve your custody disputes, the judge will first evaluate what is best for the child, based on the following factors:
Judges may not give a preference to one parent over the other based on gender. In the end, however, they have wide latitude when making custody decisions, and they may decide how to weigh these different factors. However, judges do need to communicate the reasons for their decisions. (Va. Code §§ 20-124.2(B), 20-124.3 (2022).)
Virginia custody law requires judges to ensure that children have "frequent and continuing contact with both parents," when that's appropriate. (Va. Code § 20-124.2 (B) (2022).)
If one parent has primary physical custody, they must have schedule for visitation (usually called "parenting time") between the child and the noncustodial parent. Typically, these schedules include arrangements for alternating weekend visits, extended visits during the summer and other school breaks, holidays and birthdays, and details like instructions for pick-up and drop-off between the parents and at school.
As with any custody-related issue, judges prefer it when parents communicate and create a parenting schedule that works best for the entire family. For example, if one parent works nights during the week but has weekends off, it would work out best for that parent to have parenting time on the weekends. If you present a plan to the court, the judge will sign it as long as it's serving your child's best interests. But if you can't agree on a schedule, the judge will create one for you.
Although it's common for a noncustodial parent to have unsupervised overnight visitation with a child, there are rare cases when that wouldn't be appropriate. If a judge believes that a child's mental, physical, or emotional health are at risk of harm by spending time alone with a parent, it may order supervised visitation. Typically, that means the parent and child will spend time together 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 for some parents to get unsupervised visitation in the future. For example, if a parent has a history of severe alcohol or drug abuse that could endanger the child, the judge may require that parent to attend and complete treatment before revisiting the possibility of unsupervised visitation.
It's common for custody orders to become obsolete as a child grows up. For example, when young children start out by alternating weeks with each parent, that arrangement might become cumbersome as they get older and have to keep up with schooling, extracurricular activities, and sports while also moving between homes. What may have worked when your child was in kindergarten might not work for a teenager in high school.
If you and your ex-partner agree to change the parenting arrangement, the court will approve it. If you can't agree, the parent who wants to make a change may file a formal request for a modification with the court. But it's important to understand that you must follow the original order until the judges approves a new one.
It's a common misconception that children can refuse to attend parenting time with either parent. Until a child is 18 years old, a judge has 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 for withholding custody.
When you're requesting a change in custody or parenting time, the law requires you to show that there has been a significant change in circumstances to justify the change. You'll also need to prove that the change would be in your child's best interest. Even if you've shown that circumstances warrant a review, the judge will re-evaluate your case using the same factors as the initial determination. (Va. Code § 20-108, 20-124.3 (2022).)