Child Custody Agreements and/or Orders in Virginia
Reaching an agreement regarding child custody can be one of the most stressful parts of a divorce. In the best cases, parents can agree on an arrangement that ensures that their child’s best interests are met, but other times a trial is necessary.
It is important to remember that, in either case, the decision is based on what is best for the child. To properly advocate for your child, you must understand the basic laws and procedures in Virginia. This will also help you choose the best attorney for your case.
How Custody Works in Virginia
Custody is the legal responsibility of a parent to care for their child under the age of 18. There are two different types of custody: physical and legal.
Physical custody
Determines who will care for the child daily and where the child will spend most of their time. Sometimes, one parent is awarded “primary custody” of the child, meaning that the child lives primarily with him or her, and also spends time with the other parent (called “visitation” or “parenting time”). In some cases, parents share custody of a child on an equal, or close to equal, basis. It is rare that one parent is awarded sole physical custody of a child, to the complete exclusion of the other parent.
Legal custody
Determines who will make major decisions regarding the child. These decisions can include those regarding a child’s medical care, education and/or general well-being. Usually parents share joint legal custody, meaning that both parents are equally involved in making decisions concerning the child. In some circumstances, one parent will be awarded sole legal custody of a child. This means that that parent has been given the authority to unilaterally make all significant decisions related to the child.
Visitation or parenting time
This allows the parent to have regular visits with their child, usually based on a schedule set out in the custody agreement or order. Visitation or parenting agreements can include overnight stays, holidays and vacations.
Sometimes, a court orders that visitation with a parent must be supervised by another adult. This can occur when a court determines that unsupervised contact with the parent is or could be dangerous for the child.
Factors the Virginia courts consider
Custody is determined by the best interests of the child. If a trial is necessary, the Judge is required to consider several factors, including:
- The age of the child
- The physical and mental condition of the child
- The physical and mental condition of both parents
- The developmental needs of the child, and the relationships that the child has with other family members, including siblings and extended family members
- The relationship between each parent and the child
- The ability of each parent to assess and meet the changing needs of the child
- The role which each parent has played in the child’s life up that point, and the role they will continue to play
- The propensity of each parent to facilitate the relationship of the child with the other parent, including whether one parent has denied access to the child
- The ability and effort put in by each parent to maintain their relationship with the child and the other parent
- The ability of each parent to cooperate in and resolve disputes regarding matters affecting the child
- Depending on the age of the child, their reasonable preference will be considered
- Any history of family abuse
Sometimes the court appoints an attorney for the child. This attorney, known as a Guardian ad Litem, will meet with the parents, visit their homes, meet with the child, talk to the child’s teachers and/or therapists, and make a recommendation to the court based on what they believe will be best for the child. During a custody hearing, this attorney can proffer evidence and cross-examine witnesses. They serve as a neutral third party focused solely on the interests of the child.
[Related: Child and Spousal Support]
Who can make a case for custody?
Either parent can initiate a case for custody or visitation. In some cases, however, paternity must first be established.
Virginia also recognizes other “persons with legitimate interest” in the child as parties who can petition a court for visitation or custody. These include:
- Grandparents
- Step-grandparents
- Step-parents
- Former step-parents
- Blood relatives, other family members
Grandparents who seek time with their grandchildren are the most common “third party custody” cases. The outcome is usually governed by whether or not the parents object to the visitation. If both parents object, grandparents will have a very difficult time in court, as they will have to prove that the child would suffer actual harm if they are not allowed to visit.
If only one parent objects, grandparents may have an easier time. They still have to prove, however, that it would be in the child’s best interest for visitation to occur.
Filing for custody
The first decision that must be made is where to file. In most circumstances, a parent can only file for custody in Virginia if this state is the child’s “home state,” meaning the state where the child has lived for the last six consecutive months. If the child is younger than 6 months and has lived in Virginia since birth, then Virginia would be the infant’s home state. There are some exceptions to these rules, including in cases of emergency.
Waiting for a hearing…
The divorce process can be long. If your court date is months away, there are certain circumstances when Motions for a temporary custody or visitation arrangement can be filed.
Will my child have to testify?
It is rare that a child testifies in court in their parents’ custody case. Most attorneys and judges prefer that children be kept out of any litigation related to legal and physical custody. The older a child is, however, the more weight that a court will give his or her wishes, especially if the child is of a sufficient age, maturity level and intelligence to express a meaningful preference. If it becomes imperative that a child testifies there are alternatives to doing so in open court, including having the parents stipulate to what a child would say if he testified or having the child testify outside of the presence of the parents.
Mediation
Mediation occurs when both parents sit down with a third party and try to compromise in order to reach an agreement. In Virginia, some courts require parents to attend at least one session of mediation before proceeding to trial. There are many different options for mediation, including mediation provided at no charge by the court or mediation with a third party paid for by the parents.
Can I change a court order that is already in place?
Virginia law permits a parent to request a modification of a previous custody or support order. The moving party must be able to prove that there has been a “material change in circumstances” and that the change justifies a modification of the prior order. Examples of material changes in circumstances can include changes in the child’s developmental needs, negative changes in the parent with primary custody, positive changes in the parent not having primary custody, an intended relocation of a parent, or a new marriage.
However, these changes in circumstances do not guarantee a change to the order. The decision will ultimately come down to what is best for the child.
Can I move out of state with my child?
It is generally not easy for a parent to move out of state with a child during a separation or divorce, or thereafter, unless the other parent agrees or a court allows the move. Courts generally prefer that children have the benefit of the involvement of both parents in their lives, and a relocation out of state can really hamper the involvement of the parent who remains. The “moving” parent will have the burden of proving that the move is in the child’s best interests, and those interests can, and often do, differ from the best interests of the parent.
If a parent learns that the other parent is planning to move out of state with the child, the “staying parent” can file a Motion asking the court to stop the removal of the child until such time as there can be a full hearing regarding the appropriate custody arrangement in light of the move. If the parent has already moved without the other parent’s approval or the court’s consent, the non-moving parent can file a Motion requesting that the children be returned to the area pending a full hearing.
The information set forth above is only a guide. The best way to learn about the applicable custody laws and procedures related to your specific situation is to contact a qualified attorney. Finding the right attorney to help you navigate through these difficult times is essential. Contact Cooper Ginsberg Gray today to schedule a consultation with our attorneys.