Published by Ask General Counsel on InsideNova, 2/14/2023

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In this edition of Ask General Counsel, provided by the law firm General Counsel, P.C. with offices in McLean, Virginia, we discuss the factors a court considers when making child custody and visitation decisions.  For additional information on divorce and family law matters, visit our Family Law Practice.

When making custody or visitation decisions, courts will determine what is in the best interests of the child, based on multiple factors set out in the Virginia Code. Virginia law favors custody and visitation arrangements that allow both parents to be involved in the lives of their children.

Child Custody

In Virginia there are two types of child custody: legal custody and physical custody. Physical custody refers to where a child spends the majority of his or her time. Legal custody refers to the right to make important health, education and welfare decisions for a child.

Virginia law allows “persons with a legitimate interest” to seek custody and visitation. This means that, in addition to parents, grandparents, stepparents, former stepparents and other blood relatives and family members may seek custody and visitation rights.

Visitation Rights

Visitation is the time that a non-custodial parent is entitled to have with a child. Virginia law favors visitation arrangements that allow both parents to be involved in their children’s lives. Visitation may be supervised or not supervised.

Factors Considered

When making custody or visitation decisions, courts will determine what is in the best interests of the child. The Virginia Code lists multiple factors for courts to consider when deciding what is in the best interests of the child, including:

• The age and physical and mental condition of the child
• The age and physical and mental condition of each parent
• The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life and 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 that 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, including whether a parent has unreasonably denied the other parent access to or visitation with the child
• he 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 and resolve disputes regarding 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 abuse or an act of violence, force or threat in the previous 10 years.

The court can also consider other factors as the court “deems necessary and proper” to make a determination. However, Virginia law specifically establishes that there is no presumption in favor of either parent.

Custody and visitation matters can be complex and fiercely contested. As such, it is important to have a strong advocate. Joanna Foard leads our family law practice and can help you navigate the process and protect your rights. For more information or to set up consultation, email us at intake@gcpc.com or use this Contact Us Form.