Custody

In Virginia custody is separated into two parts – legal custody and physical custody. Legal custody is the right to make important decisions regarding the child relating to their health, education, and general welfare. More often than not, parents are awarded joint legal custody.

Physical custody is where the child resides the majority of the time. Most of the time one parent will have primary physical custody. The court can also award shared custody, where the parties share time on a more equal basis.

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.

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.