Custody & Visitation
Custody and visitation disputes are among the most emotionally difficult legal matters a parent can face. Decisions about where your child lives, who makes important choices about their upbringing, and how time is shared between parents affect your family for years to come.
Virginia courts approach custody with one guiding principle: the best interests of the child. Miles Franklin works with parents throughout Stafford, Fredericksburg, and Northern Virginia to pursue custody arrangements that protect both the child’s well-being and the parent’s relationship with their child.
How Virginia Determines Custody
Under Virginia Code § 20-124.3, courts must consider several factors when determining custody and visitation, with the central question being what arrangement serves the best interests of the child. These factors include:
- The age, physical, and mental condition of the child, with consideration given to the child’s developmental needs
- The age, physical, and mental condition of each parent
- The relationship between each parent and the child, including each parent’s ability to meet the child’s emotional, intellectual, and physical needs
- The needs of the child, including important relationships with siblings, peers, and extended family
- The role each parent has played and will play in the child’s upbringing and care
- Each parent’s willingness to support the child’s continuing relationship with the other parent
- Each parent’s willingness to cooperate and resolve disputes regarding the child
- The child’s reasonable preference, if the court determines the child is of sufficient age and maturity (generally age 12 or older)
- Any history of family abuse, sexual abuse, or domestic violence within the preceding 10 years
- Any other factors the court considers necessary for the best interests of the child
Contrary to a common misconception, Virginia does not favor mothers over fathers in custody decisions. Courts take a gender-neutral approach and evaluate both parents based on the factors above.
Types of Custody in Virginia
Virginia law recognizes two dimensions of custody: legal custody (decision-making authority) and physical custody (where the child lives). Each can be awarded as sole or joint.
Joint Custody
Joint legal custody means both parents share decision-making authority on major issues affecting the child, including education, healthcare, and religious upbringing. Joint physical custody means the child spends significant time living with each parent, though the split does not have to be exactly 50/50.
Joint custody is the more commonly awarded arrangement in Virginia. It works best when both parents can communicate effectively and make decisions together in the child’s interest.
Sole Custody
Sole custody grants one parent primary decision-making authority (sole legal custody) or primary physical residence (sole physical custody), or both. The non-custodial parent typically receives visitation rights. Sole custody is generally reserved for situations where joint custody would not serve the child’s best interests, such as cases involving abuse, substance abuse, or a parent’s inability to co-parent effectively.
Temporary vs. Final Custody Orders
When parents separate, the court may issue a temporary custody order (also called a pendente lite order) that stays in effect while the case is pending. Temporary orders establish a schedule and set ground rules until the court has enough information to enter a final order.
A final custody order is entered after the court has heard all the evidence, which may include testimony from both parents, witnesses, and any court-appointed professionals. Final orders can be modified later if there is a material change in circumstances that affects the child’s best interests.
Visitation and Parenting Time
When one parent has primary physical custody, the other parent is typically granted a visitation schedule. Virginia courts encourage frequent and continuing contact with both parents unless there is a risk of harm to the child.
Common visitation arrangements include alternating weekends, midweek visits, shared holidays and school breaks, and extended summer time. The specific schedule depends on the child’s age, the distance between the parents’ homes, the parents’ work schedules, and the child’s school and activity commitments.
If there are safety concerns, the court may order supervised visitation, where a third party is present during visits.
The Role of a Guardian ad Litem
In contested custody cases, the court may appoint a Guardian ad Litem (GAL) to represent the child’s best interests. The GAL is an attorney who independently investigates the family situation, interviews both parents and the child, and makes a recommendation to the court.
Understanding the GAL’s responsibilities and how their recommendation may influence the judge’s decision is important. In some situations, a parent may seek to have a GAL removed, and there are circumstances where a GAL may withdraw from a case.
Custody Evaluations and Parenting Evaluations
The court may also order a custody evaluation or a parenting evaluation to help inform its decision. These evaluations are conducted by mental health professionals who assess each parent’s capacity, the child’s needs, and the family dynamics. The evaluator’s report and recommendations are presented to the court and can carry significant weight.
Relocation and Custody
When a parent with custody wants to move to a different area, or out of state, the relocation can significantly impact the existing custody arrangement. Virginia courts carefully evaluate relocation requests to determine whether the move serves the child’s best interests.
Understanding Virginia’s relocation requirements and how courts decide relocation cases is critical before making a move. Relocating without court approval can have serious consequences, including a modification of the custody arrangement in the other parent’s favor.
Child Support
Custody and child support are closely connected. Virginia uses an income-shares model under Virginia Code § 20-108.2 to calculate support based on both parents’ incomes, the number of children, and the custody arrangement. Learn more about how child support is calculated and how arrears are addressed.
The Division of Child Support Enforcement plays a role in establishing, modifying, and enforcing child support orders. If a parent fails to pay court-ordered support, enforcement actions can include wage garnishment, tax refund intercepts, and contempt of court proceedings.
Mediation in Custody Cases
Virginia courts often encourage or require mediation in custody disputes before proceeding to trial. Mediation gives both parents the opportunity to work with a neutral third party to reach an agreement outside of court. Agreements reached through mediation tend to be more durable because both parents have a say in the outcome rather than having a judge impose a decision.
If mediation does not resolve all issues, the unresolved matters proceed to trial.
Frequently Asked Questions
At what age can a child decide which parent to live with in Virginia?
Virginia law does not set a specific age at which a child can choose. The court may consider the child’s preference if the child is of “reasonable intelligence, understanding, age, and experience,” which is generally around age 12 or older. However, the child’s preference is just one factor among many, and it is never the sole basis for a custody decision.
Can a custody order be modified?
Yes. Either parent can petition the court to modify a custody order if there has been a material change in circumstances since the last order was entered. Examples include a parent’s relocation, a change in the child’s needs, a parent’s new relationship or living situation, or evidence of abuse or neglect. The court applies the same best-interests analysis when considering a modification.
What happens if the other parent violates the custody order?
If a parent violates a court-ordered custody or visitation arrangement, the other parent can file a motion for contempt of court. If the court finds a willful violation, consequences can include fines, modification of the custody arrangement, make-up visitation time, and in serious cases, jail time.
Does Virginia recognize custody rights for unmarried parents?
Yes, but there is an important distinction. An unmarried mother has legal custody of the child by default. An unmarried father must first establish paternity before he has standing to petition for custody or visitation rights. Once paternity is established, the father has the same rights as a married father to seek custody or visitation.
Schedule a Free Consultation
If you or someone you know is dealing with a custody or visitation dispute in Stafford, Fredericksburg, or Northern Virginia, schedule a free consultation with Miles Franklin to discuss your case and learn about your options. You can also call (276) 773-6102 to speak with the office directly.