Parents in a custody case usually want to know one thing: what is the judge actually looking at? The answer is written down. Virginia does not leave custody to instinct. Virginia Code § 20-124.3 lists ten factors a court must consider in determining the best interests of a child, and a judge is required to communicate the basis of the decision to the parties.
Knowing the ten factors changes how you prepare. It tells you what evidence matters and, just as usefully, what does not.
First, two things Virginia law does not presume
Before the factors, two rules shape everything else. Under Virginia Code § 20-124.2(B), the court may award joint legal custody, joint physical custody or sole custody, and there is no presumption in favor of any form of custody. There is also no presumption or inference in favor of either parent.
Mothers are not favored. Fathers are not disadvantaged. Joint custody is not automatic, and neither is a primary parent arrangement. Every case starts from a genuinely neutral position, which is why the evidence you put in front of the judge carries so much weight.
It also helps to know which court you are in. Custody and visitation alone are heard in the Juvenile and Domestic Relations District Court under Virginia Code § 16.1-241. Custody decided as part of a divorce is heard in Circuit Court.
The ten factors
1. The age and physical and mental condition of the child
The statute directs the court to give due consideration to the child's changing developmental needs. A schedule that suits a toddler is wrong for a fifteen year old. Frequent short exchanges serve young children who need regular contact with both parents. Older children need stability, continuity with their school and friends, and a say in their own logistics. Special medical or educational needs weigh heavily here.
2. The age and physical and mental condition of each parent
This is about capacity to parent, not about judging anyone. A health condition matters only where it affects the ability to care for the child. Untreated conditions carry far more weight than managed ones, which is why documented treatment and compliance are worth presenting.
3. The relationship between each parent and each child
The statute asks about positive involvement in the child's life and the ability to accurately assess and meet the child's emotional, intellectual and physical needs. Note the word "accurately." Courts pay attention to which parent can describe the child as they actually are, including their struggles, rather than an idealized version. A parent who knows the teacher's name, the current reading level and the name of the friend causing trouble is demonstrating something a schedule cannot.
4. The needs of the child, including other important relationships
This factor reaches beyond the parents to siblings, peers and extended family. Courts are reluctant to separate siblings. Grandparents who have provided regular care, a stable peer group and continuity in a school community all count.
5. The role each parent has played and will play
Both past and future. The parent who has handled medical appointments, school communication and daily routines starts from a position of demonstrated involvement. That said, this is not purely historical. A parent whose work pattern is genuinely changing can show what their role will be going forward, though courts want evidence rather than intention.
6. The propensity of each parent to support the child's relationship with the other parent
This factor is the one parents most often damage themselves on. It expressly includes whether a parent has unreasonably denied the other parent access or visitation. Withheld weekends, messages that go unanswered around exchange time, and running commentary about the other parent in front of the child all land here, and judges notice. A parent who actively supports the other relationship gains real credibility.
7. Willingness and demonstrated ability to cooperate
The statute asks about the ability to maintain a close and continuing relationship with the child and to cooperate in and resolve disputes. The operative word is "demonstrated." A record of reasonable, businesslike communication is evidence. So is the opposite. Written communication in a custody case should be composed as though the judge will read it, because there is a fair chance the judge will.
8. The reasonable preference of the child
Only if the court deems the child to be of reasonable intelligence, understanding, age and experience to express a preference. Virginia sets no magic age. A mature twelve year old may be heard where an immature fifteen year old is given less weight. Preference is one factor among ten, never a veto, and a child who appears coached can damage the case of the parent who coached them.
9. Any history of family abuse, sexual abuse, child abuse or an act of violence
The statute defines this precisely, incorporating family abuse as defined in § 16.1-228 and acts of violence, force or threat as defined in § 19.2-152.7:1, limited to acts occurring no earlier than ten years before the petition was filed. Where this factor is in play it can outweigh everything else. It is also the factor where unsupported allegations do the most damage to the accuser's credibility, so it demands careful, documented handling on both sides.
10. Such other factors as the court deems necessary and proper
The catch all. Relocation plans, a new partner in the household, work travel, substance use and the practical geography of two homes relative to the child's school all get considered here.
What does not decide a Virginia custody case
Just as useful to know. These matter far less than parents expect:
- Who earns more. Income is addressed through child support, not custody. A bigger house does not win custody.
- Who filed first. No advantage.
- Adultery. Marital fault can matter for spousal support, but it bears on custody only where the conduct actually affected the child.
- Who wants it more. Intensity is not evidence.
The guardian ad litem
In contested custody cases, Virginia courts frequently appoint a guardian ad litem to represent the child's interests. The guardian ad litem interviews both parents, usually sees the child in each home, contacts teachers and doctors, and reports to the court.
Parents routinely misjudge this role. The guardian ad litem is not your advocate and not a neutral observer of your dispute. They are the child's attorney, and their recommendation carries substantial weight. Treat every interaction as evidence, because it is. Our page on the guardian ad litem in Virginia explains the appointment and the standards they work under.
How to actually prepare
Map your evidence to the factors rather than to your grievances. Practically:
- Keep a dated, factual record of parenting time, exchanges and cancellations. Facts, not commentary.
- Keep communication civil and in writing. A calm written record is one of the strongest exhibits a parent can build.
- Be able to describe your child specifically. Teachers, providers, routines, current struggles.
- Propose a schedule that works logistically, including school runs, activities and holidays. Judges respond to workable plans.
- Support the other parent's relationship visibly, even when it is difficult. Factor six rewards it.
Custody orders are not permanent
A custody order can be revisited when there has been a material change in circumstances and modification serves the child's best interests. Children grow, jobs change, parents move. The same ten factors apply on a modification petition. See our page on custody and support modification for what meets the standard.
Common questions
At what age can a child choose which parent to live with in Virginia?
There is no such age. A child's reasonable preference is one of ten factors and is weighed according to the child's maturity and understanding. No child in Virginia has the right to decide.
Does Virginia favor mothers in custody cases?
No. Section 20-124.2(B) states there is no presumption or inference in favor of either parent, and no presumption in favor of any form of custody.
What is the difference between legal and physical custody?
Legal custody is decision making authority over education, health care and religious upbringing. Physical custody is where the child lives day to day. They are decided separately, and joint legal with primary physical to one parent is a common outcome.
Can a custody order be changed?
Yes. Custody remains modifiable on a material change in circumstances where modification is in the child's best interests. Parents cannot permanently contract away the court's authority over children.
Talk to a Northern Virginia custody attorney
Custody cases are decided on evidence organized around ten specific factors. Randall J. Borden has handled custody matters in Fairfax, Arlington, Alexandria, Loudoun and Prince William since 1995, and takes every case personally. Request a confidential consultation or call 703-385-8722.