Challenges over child custody and visitation rights are always difficult and complex. These disputes can be very emotional without having to worry about the legal side of things as well. Working with an attorney knowledgeable in the process can help prepare you for what to expect.
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.
A parent may have sole custody of a child or share joint custody between both parents. With sole legal custody, one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child. Sole physical custody means one the child resides with the custodial parent. The non-custodial parent may have visitation rights.
Joint legal custody means both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child. Joint physical custody means both parents share physical custody of the child, although not necessary share equally. In Virginia, joint custody is awarded more commonly.
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 is the time that a non-custodial parent is entitled to have with a child. Virginia law favors arrangements, both custody and visitation, that allow both parents to be involved in the lives of their children. Visitation may be supervised or not supervised. Supervised visitation is more likely if the non-custodial parent has placed the child in a dangerous situation other acted otherwise inappropriately.
Custody and visitation matters can be settled through negotiation or mediation between the parties. However, if the parents are unable to agree, they may petition the court to decide these issues. Even if the parties enter into an agreement establishing custody, visitation, and child support matters, the court must approve the agreement.
If the court is tasked with determining a custody arrangement, discovery may take place, during which the parties may seek answers to questions and request documents. Drug tests and substance abuse evaluations may be required, as well as psychological evaluations of the parties and children. Additionally, the court may appoint a guardian ad litem, which is an attorney tasked with representing solely the best interests of the child.
A court may also determine a temporary custody order pending the final hearing. Once ordered, for a custody arrangement to be modified, there must be a material change of circumstances and new facts since the original custody order. Additionally, any modification must be in the best interests of the child.
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, 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;
- The 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 because of their importance, it is beneficial to consult with an attorney experienced in family law matters. Our family law attorneys are experienced in custody and visitation matters and can help you navigate the process and protect your rights.