Attorney
Custody in Virginia
Custody means being awarded the legal responsibility of the care of a child including where they live and who makes the decisions on their behalf. Custody is a difficult process for the parents and also the children. This will help answer some questions but are no substitute for legal advice from an experienced professional.
How to File for Custody
Custody begins after the parents separate. If the parents were married, there will often be custody arrangements within the divorce decree. If the parents are not married or there was not a custody agreement in place, then one parent will Petition the Court for Custody at the Juvenile and Domestic Relations Court. If an agreement was already in place, a parent can also file a Motion to Amend or Review Order. Other family members such as grandparents, aunts/uncles, siblings or other members may file as well. Once this begins, the legal system becomes a part of the custody proceedings.
Trial
Following the Petition or Motion, a trial will be scheduled to evaluate the situation, hear both sides, and make a decision if no agreement can be reached. Before a trial, it is highly suggested to meet with an attorney as they can help you better prepare and are aware of what to expect for the process.
How Custody is Determined
Custody in any state can be determined in the divorce agreement, mediation with attorneys or through the court system. When parents are unable to reach a decision, the court will intervene and evaluated the situation. To decide who receives what rights, the court custody based on the best interest of the child which consists of:
- Best interest of the child
- Wishes of the child
- Health of parents
- Religion or cultural aspects
- Adjustment to school and move
- Evidence of parent usage of drug or alcohol
- Support of family
- Interaction of household
- Age of child
The court will take all of these into consideration, hear from both the parents and attorneys. If the child is old enough, the judge will also speak with them as well. If a child between the ages of 8-14, they are usually asked and heavy weight is placed upon their wishes. Based on the circumstances, the judge can then award a type of custody.
Guardian Ad Litem
A court appointed attorney may be assigned to represent the best interest of the child. They can be assigned in all cases, but are more present with:
- Cases involving abuse or neglect
- Child is subject of entrustment agreement
- Child is subject of a petition terminating parental rights
- Child seeks emancipation
- Foster care plans
- Mental health commitment proceedings
- At the discretion of the court
Types of Custody
While there are different custody arrangements and each situation is unique, there are more commonly given. There are three common types of custody that are awarded based on the evaluation of the situation.
- Joint Legal Custody
- Joint Physical Custody
- Sole Custody
Each have their own advantages for the child(ren) involved and allow for the court to award custody based on their own evaluation.
Joint Legal Custody
Joint Legal Custody involves both parents retaining the ability to make legal decisions about the child. No matter if the child lives with one parent over the other, joint legal custody allows for both to be allowed to have input in their lives.
Joint Physical Custody
Joint Physical Custody occurs when parents share the child between their homes. The child lives with both parents and the care responsibilities are shared amongst them. Both parents are also responsible for the custodial, daily responsibilities ,of the child as well.
Sole Custody
Sole custody is the most commonly requested, yet most difficult to obtain. Sole custody awards a single parent the primary care of the child and makes all decisions about their lives. Sole custody awards legal and physical custody of the child in totality. It does not terminate the rights of the other parent, but does make it does affect their role in the child’s life. The courts prefer for a child to have both parents (Virginia Code 20-124.2(b)) and awards sole custody only in certain instances where:
- Parents cannot communicate or agree with each other
- One parent continually undermines the other and participates in parental alienation
- One parent has abused
- Where visitation has been denied unreasonably
In sole custody, visitation is possible to be considered for the other parent to obtain. Depending on the situation, a court may dictate where it occurs and if it is supervised.
Temporary Custody Order
A temporary custody order is given during a trail until a final award is given. The same considerations are given in the best interests of the child and the situation. These last throughout the trial and are not permanent or final decision.
FAQ about Custody in Virginia
Below are some of the commonly asked questions and are Virginia specific.
Is Virginia a Mother’s State?
Virginia does not give preference to one parent over another in custody awards. In situations where the parents are not married however, in situations where the parents are not married the mother is assumed to have custody until the father files for rights.
Can a Father get Full Custody in Virginia?
Virginia doesn’t have preferences for which parent gets custody. If the conditions above are met then a father can obtain full custody.
What makes a Parent Unfit in Virginia?
An unfit parents is one that has been abusive, neglected or has not given proper care to a child. This is determined by whether the child meets the physical needs, has a sound mind, is able to support the child, and considers their own needs. Some examples of:
- Inappropriate limits for the child’s age
- Understanding and handling the needs of the child
- Involvement in childcare
- Abuse
- Domestic Violence
- Drug or alcohol abuse
- Poor courtroom etiquette
- Mistreatment of the other parent
- Loss of job
- Participation in illegal activity
- Inappropriate behavior
How does a Mother get Full Custody of her child?
A Mother can obtain full custody in the same manner that a father can. The conditions above such as an unfit parent, abuse, and acting in the best interest of the child could result in sole/full custody being awarded.
What is Joint Custody in Virginia?
Joint custody involves the share of physical custody and legal custody of the child. This means sharing the daily responsibilities and having the child spend time in both households. This also means that both parents retain legal rights to the child and decisions that affect their lives.
Visitation
Visitation can be awarded in cases of sole custody. This allows for the other parent to have contact with the child. Visitation can also be awarded for grandparents, aunts/uncles, or any family member to request visitation rights.
Virginia Custody Laws
Here are some of the cited laws for reference of custody laws in Virginia. These can be difficult to understand and interpret as to how they affect your unique situation.
- Virginia Code Title 20 Domestic Relations
- Uniform Child Custody Jurisdiction and Enforcement Act
- Grandparent Visitation Rights