Virginia Child Custody and Visitation FAQs

After a divorce or the dissolution of a relationship, there are decisions to make regarding custody and visitation of minor children. Who will be the primary caregiver of the child? Will we share both legal and physical custody? What will the visitation rights be?

The courts will have their own questions as well when making decisions regarding child custody and visitation. Take a look these FAQs and their answers to better understand the process.

What custody/visitation rights do parents in Virginia have before any court orders have been entered?

In the absence of a court order, both parents have equal rights to the physical custody of their minor children and to make decisions on behalf of their children. The parties could agree on how to handle custody and visitation prior to the court hearing and have their agreement entered as a consent order. Alternatively, either party could file a motion for pendente lite relief and ask the court to enter a temporary order for custody and visitation to remain in effect until the court makes a final determination.

How do judges make decisions about child custody and visitation?

Judges make child custody and visitation decisions based on the child’s best interests. Judges consider a variety of factors they believe to be important to determining the child’s best interests when making a decision.  One important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the other parent remains a strong part of the child’s life.

What factors might be considered when awarding custody and visitation?

Below you’ll find an extensive but not exhaustive list of potential factors. Keep in mind that the court may take into consideration any factors they believe to be relevant to the case and in the best interests of the child.

• Who is the current primary caregiver
• Living arrangements for each parent
• Which parent is better able financially to take care of the child
• What is the psychological and physical fitness of each parent
• What is the child’s preference
• Age and health of each parent
• Age, health, and gender of the child
• Religious views
• How close the parents live to each other
• How close they live to members of the child’s extended family
• Which parent lives closest to the child’s school and social circle
• Length of separation and where the child has been living
• Any prior abandonment or surrender of custody issues

What are the different types of court ordered custody?

There are many different types of court ordered custody to be aware of:

• Legal custody: This type of custody includes rights and obligations to make decisions for the child regarding health care, education, religion, and other important matters.
• Physical custody: As it sounds, physical custody encompasses the rights and obligations to care for the child physically
• Temporary custody: This type of custody is granted while parents wait for the hearing. Also called Pendente Lite custody, it is made based on the child’s best interests and does not determine the final custody decision.
• Sole custody: The child has only one residence with one of the parents. Parents may receive sole physical custody, sole legal custody or both.
• Split custody: When 2 or more children are involved, one child lives with one parent and the other child lives with another parent.
• Joint legal custody: In this type of custody, both parents can make decisions with the same amount of legal rights and obligations.
• Shared physical custody: Parents share the physical custody of the child, alternating who cares for the child during set time periods.

How much say does a child have in a custody decision?

A child under the age of 18, who has not been legally emancipated, cannot choose which parent to live with in Virginia. That decision rests with the child’s parents or, if a custody order has been entered, then with the court. If a child is old enough to make a rational decision, the court may take the reasons for their preference into consideration. This scenario is typically the case with older, more mature children.

Can third parties and grandparents be granted custody?

The short answer is yes but rarely. The biological parents of the child bear the presumptive right to custody. Grandparents, other relatives, and other third parties may be considered if both parents are unfit.

I’m the mother. Am I guaranteed custody?

No. In fact, judges and courts are not permitted to give preference to one gender over the other when making a custody or visitation decision. The best interests of the child always come first. Despite the abolishment of legal preference to granting maternal custody, you may still find judges who are biased and prefer to award females custody.

Do I need to go to court to get custody and visitation of my child?

The simple answer is no, but it is best for final decisions of the parties to be reduced to a court order for clarity and compliance.  If you reach an agreement before beginning the proceedings, it will typically make for a smoother and easier process and custody and visitation can be determined through a formal signed agreement. This agreement is then entered into a final order. Parties can retain counsel to negotiate or review agreements and can also use other services, such as mediation. While custody matters are personal and in the best case decided outside a courtroom, legal services are useful in helping the parties reach a final agreement which can be incorporated into an order.

My spouse fails to pay ordered child support.  Can I deny him/her visitation until he/she pays?

No. Other remedies exist to get a non-paying party to comply with paying child support. Withholding visitation is not one of these remedies.

Is a custody or visitation award considered permanent?

No. The Virginia courts retain jurisdiction to review and modify all orders of custody and visitation.

About Melone Hatley, P.C.

Melone Hatley, P.C. is a general practice law firm and serves Virginia Beach and 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 rights, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or reach us online here.