FAQ Child Custody and Visitation

The primary concern of any Virginia court regarding custody is the best interest of the child. The court will take into consideration numerous factors when determining custody, including the following:

• The child’s gender, current age, physical and mental status.
• The parent’s current age, physical and mental status.
• The child’s developing physical and mental health needs.
• The parent with whom the child has had primary care.
• The relationship the child has with each parent and the impact of each on the child.
• The relationship of the child with other family members (siblings, extended family members) and friends.
• Any history of physical or verbal abuse.
• Each parent’s capability to fulfill the child’s basic necessities such as food, clothing, housing, medical and dental care.
• The lifestyle of each parent and the effect of lifestyle on the child.
• The willingness of the parent to foster a nurturing, consistent relationship between the child and the other parent.
• The inclination of each parent to cooperate with the other parent.
• The child’s preference for custody if the child is of acceptable age and capable of understanding the choices required.

Once again, the court must determine what is in the best interest of the child with regards to grandparental visitation or custody. Virginia statute protects a child’s right to have a relationship with extended family members, even over the objection of the child’s parent(s). This does not ensure that a grandparent will be given visitation or custody, but does allow for a grandparent to pursue the issue in court.

Grandparents wishing to pursue legal rights with children may fall under the Virginia custody statute as “persons of legitimate interest” who may be awarded custody. Parental rights typically supersede a grandparent’s request for visitation or custody so grandparents must have serious and compelling reasons for pursuing legal avenues when seeking access to a child.

Like grandparents, Virginia law recognizes a step-parent’s right to continue a relationship with a child as a “person of legitimate interest”. Many factors are taken into account by the court when determining a step-parent’s rights, however, like grandparents, step-parents’ legal rights to children are considered secondary to the rights of natural parents. A compelling reason would need to be present before step-parents would be granted legal rights to a child.

Drafting and filing legal documents:

When both parents agree upon all aspects regarding visitation and custody, the process of legal documentation can be done by an attorney without mediation or litigation.

Mediation:

Mediation is often a good option for parents to resolve their differences regarding the child’s care, living and visitation arrangements, and child support. During mediation parents may also create a plan for managing any future issues that might arise regarding the child. Many couples experiencing a divorce find that mediation is positive alternative to litigation. In mediation, neither spouse retains an attorney and as a couple they seek the counsel of a neutral mediator, who can craft legal documents. However, both parties should retain an attorney to consult before and during the mediation process, and should ensure that their attorney had reviewed any agreement before signing.

Collaborative Law:

When using collaborative law for visitation and custody agreements, each spouse retains legal representation to guide them during negotiations and the final arrangements. Like mediation, collaborative law takes place outside of court and does not involve litigation. Within the framework of collaborative law you are assured that your legal interests are fully represented by an attorney but not determined by the court.

Litigation:

When parents are unable to agree on child visitation and custody issues, they often find themselves in court to resolve the situation. In litigation each parent will, in the end, have to abide by the decision of the court.

In short, the answer is no. Circumstances do change, and if they change in a way that impacts custody and/or visitation, a parent may ask a court to review and modify a child’s visitation and custody.

Domestic violence is taken seriously under Virginia law. There are three levels of protection (emergency, preliminary and permanent) that fall under a Family Abuse Protective Order. Family abuse can be any action that is violent, forceful or threatening (including forced detention) and results in bodily injury or puts the person in fear of bodily injury. A protective order may be issued for up to two years from the date of the hearing.

Having a protective order issued may significantly affect both visitation and custody decisions by the court in determining who has legal and physical custody, and visitation rights of the non-custodial parent.

The finer points of custody can be confusing and it’s important to understand that there is a difference between legal and physical custody.

Legal custody determines who can make legal decisions for a child. Issues such as education, medical decisions, and religion fall under the umbrella of legal custody. In terms of legal custody one or both parents may be awarded legal custody. There are pros and cons of joint legal custody, and each family’s legal custody situation is unique. If a divorce is particularly contentious, joint legal custody may prove difficult while a more amicable divorcing couple may find that joint legal custody works for them.

Physical custody refers to where the child will live who will be have the hands on primary parenting duties. Physical custody, like legal custody, can be awarded to one or both parents. Again, there are pros and cons to joint and sole physical custody and the courts bases its decisions on both forms of custody on the best interest of the child.