Virginia Child Custody Attorneys

When spouses divorce, the issue of “who gets the kids” is often the most difficult and stressful for both parents and children. In the Commonwealth of Virginia, the law does not favor either parent.  Instead it considers the best interests of the child, and looks at the relationship between each parent and child.  While others may seek custody (grandparents, aunts, uncles) there is always a presumption in favor the natural parents.

If the parents are not married, Virginia considers any offspring the child of his or her mother.  If the father wishes to assert rights to the child, paternity must be established or admitted in court.  There are several ways to establish paternity, and a father should consult a family law attorney for guidance.  Once paternity is established, neither party will be given a preference by the court solely on gender.

Types of Custody

Custody is separated into two parts, legal custody and physical custody.  A parent with legal custody has the right to make plans and decisions for the child’s education, medical care, religious upbringing, discipline, and other matters concerning the child’s welfare.  A parent with physical custody has the child living with them z majority of the time and can make decisions about the child’s everyday needs.

• Temporary custody refers to who the child is living with on a temporary basis. It is only in effect pending a full hearing.
• Joint Legal Custody: Joint Legal Custody is when both parents have an equal right to make important decisions involving the child, including their health, education, and welfare.
• Sole Legal Custody: This type of custody is where only one parent has the right to make decisions affecting the child’s health, education and welfare.
• Primary Physical Custody: refers to where the child resides a majority of the time.
• Split Custody: Split custody arrangements are rare, and they involve one parent having custody of one child and the other parent having primary custody of another child. Some considerations for these types of arrangements are the age and maturity of the child and their expressed preference.
• Shared Custody: Shared custody refers to an arrangement where the parties share time with the children more equally.

Before making any determination of custody, the court will consider the factors under Virginia Code Section 20-124.3, or the “best interests of the child” standard.

Factors the court will consider include:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. 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;
4. 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;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. 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;
7. 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;
8. 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;
9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

The court has the power to deny visitation. Normally the court will only stop visitation for a specific time period or until a certain task is performed. For example, the court has previously denied visitation until the parent entered and completed a substance abuse program. The court may deny visitation if it’s proven that the non-custodial parent is dangerous or has put the child at risk.

Before initiating a custody and visitation case, it’s important to understand which court has jurisdiction. Virginia has adopted the UCCJEA, or Uniform Child Custody and Jurisdiction Enforcement Act. This statute sets out where jurisdiction of the matter is proper. Before filing a case in Virginia, the petitioning party has to verify there are no prior custody orders and the child has resided in Virginia for at least 6 months.

There can be situations where Virginia will exercise jurisdiction even when these requirements have not been met, such as in emergency motions. You should consult with a child custody lawyer before initiating a custody case to ensure you file in the proper place.

About Melone Hatley 

Melone Hatley is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients.

We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about custody and visitation, contact our office today at 703.995.9900 or reach us through our contact page.