Custody and Visitation

The breakup of a family is a difficult, emotional and confusing time, especially for the children.  It is therefore helpful if the parents can come to an agreement on custody and visitation arrangements. 

Parents in Virginia are encouraged to reach an agreement on custody and visitation issues, and many parents, either on their own or with the assistance of the Commonwealth, come to an agreement through mediation or other forms of alternative dispute resolution.  If the parents cannot compromise on custody and visitation issues, the judge ultimately will decide, based upon what he or she believes to be in the best interest of the child.  If the Court orders “sole custody,” that parent retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.  If the Court orders “joint legal custody,” both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child's primary residence may be with only one parent.  If the Court orders “joint physical custody,” both parents share physical and custodial care of the child.
 
The factors the judge must consider in determining what is in the best interest of the child are spelled out in Section 20-124.3 of the Virginia Code, and include:

• The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs
• 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 family abuse
• Such other factors as the court deems necessary and proper to the determination

It used to be that young children were presumed to be better off with the mother.  This so-called “tender years doctrine” has been abolished in Virginia, and the law does not favor either parent based on their gender or traditional roles as “mother” or “father.” 

It should also be noted that child custody and visitation is not limited to the parents.  Anyone with a “legitimate interest” can seek custody or visitation.  Section 20-124.2 of the Virginia Code says that the court “shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.”  Usually this applies to grandparents, and is most often invoked when one (or both) of the parents is absent from the child’s life. 

Other participants in child custody and visitation cases include social workers who may conduct home studies and report the conditions of the home to the court, and guardians ad litem, who may be appointed by the court to represent the child.  Not every custody and visitation case involves home studies and guardians ad litem, but they are resources available if the need arises.

The issues of custody and visitation do not necessarily end when the Court makes its final ruling.  The Court retains jurisdiction to amend its custody and visitation order until the child reaches the age of majority or is otherwise emancipated.  To obtain a change in custody or visitation, the parent seeking the change must show that there has been a “material change in circumstances” that justifies amending the original order.  In other words, the change in circumstances must be significant enough to warrant a change in custody (considering the factors found in Section 20-124.3 of the Virginia Code), and such a change in custody must be in the best interest of the child.  Common examples include when one parent wants to move to a different location outside the local area; when one parent unreasonably interferes with the other parent’s relationship with or access to the child; or when one parent’s income, financial condition, or personal living arrangement changes to the point that they can no longer provide a suitable environment for the child.  Obviously, these changes would represent a material change in circumstances, but may or may not result in a change in custody or visitation.  The Court has broad discretion to make decisions it considers to be in the child’s best interest.