Virginia Child Custody Laws

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.

Types of Custody Arrangements 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.

Joint Custody

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 (2024).)

Sole Custody

Sole legal custody means that one parent may unilaterally make decisions concerning the child, without consulting the other parent. Sole physical custody means that only one parent retains responsibility for the child's care and control.

Judges rarely award sole legal custody. In most cases, it's more appropriate for the parents to share decision-making authority, unless one parent isn't fit to make these important decisions or the parents have such a high degree of conflict that they'll never be able to agree.

It's more common for judges to award one parent sole physical custody, if 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) (2024).)

Custody Agreements

If possible, it's always better to create a custody agreement with your co-parent on your custody arrangements rather than leave it to a judge to decide for you. You'll need to submit your agreement to the court, but the judge will approve it as long as the arrangements appear to be in your child's best interests.

If you're having trouble agreeing on all the custody details, you may consider attending custody 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.)

How Virginia Judges Make Custody Decisions

When you need to have the court resolve your custody disputes, the judge will first evaluate what is best for the child, based on all of the relevant circumstances, including:

• the age and physical and mental health of the child
• each parent's age and physical and mental health
• the relationship existing between each parent and the child, in light of each parent's positive involvement with the child's life and ability to accurately assess and meet the child's emotional, intellectual, and physical needs
• the child's needs, including the relationships with siblings, peers, and extended family
• the role that each parent plays in the child's upbringing
• each parent's tendency to actively support the child's relationship with the other parent. including any history of denying the other parent access to the child
• each parent's willingness to maintain a close and continuing relationship with the child
• both parents' ability to cooperate and work out disputes about the child
• the child's preference, if the court finds that the child is mature enough and has enough understanding and experience to express a reasonable preference, and
• any history of family abuse, child abuse, sexual abuse, or any violent acts or threats within the past 10 years.

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. (Va. Code §§ 20-124.2(B), 20-124.3 (2024).)

What Is Visitation or Parenting Time?

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) (2024).)

If one parent has primary physical custody, there must be a 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 come up with 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 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. Judges may order supervised visitation if they believe spending time alone with a parent would pose a risk of harm to a child's mental, physical, or emotional health. In supervised visitation, the parent and child will typically spend time together at a court-approved location with a trained, court-approved third party keeping a watchful eye.

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 the parent to attend and complete treatment before revisiting the possibility of unsupervised visitation.

Can I Modify a Custody Order in Virginia?

It's common for parenting arrangements to become less workable as a child grows up. For example, alternating weeks with each parent might be okay for young children but become cumbersome as kids get older and have to keep up with schooling, extracurricular activities, and sports while also moving between homes.

Other changes may also call for different custody arrangements, such as when one parent wants to move with the child to a location that will make the current parenting schedule impractical or impossible.

You and your co-parent may agree on a change to your current parenting arrangement. As with initial custody agreements, you'll need to submit your agreement to the court so that a judge can approve it and make it part of an official, modified court order.

If you can't agree, either parent may file a formal request for a modification with the court. To be successful, you'll need to prove both of the following:

• there's been a significant change in circumstances since your most recent custody order was issued, and
• the modification you're seeking would be in your child's best interest, based on the same factors that go into an initial custody determination (as discussed above)

Under Virginia law, it may be considered a qualifying change of circumstances when one parent has intentionally withheld the child's visitation with the other parent without a good reason. (Va. Code § 20-108 (2024); Keel v. Keel (303 S.E.2d 917 (Va. 1983).)

Until a judge approves a modification of custody or visitation, you must follow the original order.