In this article we discuss how child custody works in Virginia. Our goal is to help parents better understand how the law works so they can more effectively navigate the child custody process, do good by their children, represent themselves in court, and collaborate with their attorneys.
What does custody consist of in Virginia?
In Virginia there are two parts of child custody. One is physical custody and the other is legal custody.
Physical custody deals with who the child lives with and who takes care of the child day-to-day.
Legal custody refers to the responsibility to make significant decisions that guide the child’s life, such as about education, religion and healthcare.
Virginia allows for joint or sole custody or both physical and legal custody (VA §20-124.1). The law does not prefer one over the other, and the law treats both parents equally. No parent gets any special preference (VA §20-124.2(B)).
For example, if parents get divorced they might work out a joint physical custody schedule where the child lives with one parent 70% of the time and both parents have equal legal custody.
The child needs to have lived in VA for the previous six months or more in order for parents to be able to file in VA.
What is the custody process?
Child custody cases will be heard by Virginia’s Juvenile and Domestic Relations District Court.
The Juvenile and Domestic Relations (JDR) Court is different in that a major priority is to take into account the unique needs of families and maintain their privacy to a greater extent than regular district court. The court has written an explainer pamphlet with more details about what it does and how it’s unique.
The child custody process starts by one parent filing a petition with the court for an order granting physical and legal custody. Filing a petition costs $25 but that fee can be waived if the parent can’t afford it.
Then, that parent must serve the other parent with the petition, which is usually done by the local sheriff.
If both parents agree how physical and legal custody should be arranged, then they should include a document describing that in the petition. This is usually called a parenting plan and it describes where the child will live when, how major decisions will be made for the child, how disputes between parents and violations of the parenting plan will be dealt with, and anything else the parents want to make official.
When parents do not agree the judge will usually order that they work with a court-appointed mediator to try to craft a parenting plan they both approve (VA §20-124.2(A)).
The court will not require mediation if one parent has abused the other or the child. In Virginia, mediation is free for parents (VA §20-124.4). Learn more about mediation with our detailed guide about creating a joint parenting plan with the help of a mediator.
If mediation fails, then the judge will hold a hearing and listen to each parent present evidence and witnesses.
The judge will conclude the process by allocating legal and physical custody according to what they see as in the child’s best interest. Their decision will take the form of an official court order.
When one parent begins the custody case, the court may issue a temporary order for child custody (VA §20-103(A)). Usually, this happens in the context of a divorce proceeding or as an emergency act when one parent abuses the other or the child.
Non-emergency Temporary Orders do not affect either parent’s chances of receiving permanent physical or legal custody of their child.
How do Virginia courts make custody decisions?
Custody decisions are made in the best interest of the child, not the best interest of the parents.
Virginia law treats parents equally, giving them no preference to either parent at the start of child custody cases:
“The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either.”VA §20-124.2(B)
Custody decisions hinge on what’s in the “best interest” of the child or children (VA §20-124.2(B)).
When both parents agree on custody arrangements, the court will typically take their agreement as being in the child’s best interest. This isn’t true in cases of abuse.
If the parents don’t agree, mediation fails, and the judge needs to decide, then each parent will have the opportunity to present evidence and witnesses about what’s in the child’s best interest.
The court might decide it needs additional information about the child’s mental health and order an independent psychological evaluation (VA §20-124.2(D)). If the judge speaks with the child without either parent or their attorneys present, the court will provide each parent with a record of that conversation (VA §20-124.2:1).
What does “best interest” of the child mean?
Parents usually have a good idea about what’s best for their child. However, the emotional stress of divorce and custody proceedings can cloud even the wisest parent’s judgement.
What the law says
To help courts rule consistently and fairly in situations where parents may disagree about what’s best for their child, Virginia law spells out what a judge must consider when coming to terms with what’s in a child’s best interest:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The age and physical and mental condition of each parent;
- 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;
- 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;
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- 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;
- 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;
- 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;
- 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
- Such other factors as the court deems necessary and proper to the determination.
The Virginia court system describes how it considers some of these points in more detail here.
Does the child get a say? Potentially. If the judge deems the child to be mature enough and to have clear preferences, then their wants may be taken into account (VA §20-124.3(8)). The older a child is, the more sway their opinions will have.
For more details, check out Virginia family law attorney Jason A. Weis’s take on how courts interpret children’s preferences in his excellent post A Comprehensive Guide to Virginia Child Custody and Visitation.
What’s included in a custody order?
Some states are very specific about what information is in a custody order. Virginia is not.
- Most of a custody order consists of what is called a parenting plan. A parenting plan includes, at minimum, the following details:
- Allocation of physical custody
- Allocation of legal custody
- Visitation (aka parenting time) schedule, or a method by which time shall be scheduled
- How disputes between parents shall be resolved
A good parenting plan should also include other details, depending on what’s relevant to the family:
- Visitation schedule for non-major holidays or other days special to the family
- What to do if one parent is in the military and gets deployed
- What to do if one parent wants to move
If parents aren’t able to work out their differences, a judge will have to decide on the details of a custody order. Since they don’t know the child as well as the parents and only have a limited amount of time, their parenting plans are usually simple and not tailored to the desires of the parents. They might incorporate a stock visitation schedule, such as alternating weeks, or one parent having their kids during the week and the other having them only every other weekend.
What are the possible outcomes?
Joint custody and sole custody are the possible outcomes of a child custody case in Virginia.
Joint custody can take different forms. For example, parents could share joint legal custody while one parent has sole physical custody. Or, parents could share joint legal and physical custody. Or, parents could share joint legal and physical custody, with one parent having the right to make specific types of decisions for the child.
When one parent has physical custody of the child for fewer than 90 days in the year, the other parent has what’s known as “primary physical custody”. Shared physical custody is when each parent has physical custody for at least 90 days in the year.
Sole custody is less common these days. Some reasons why sole custody might be awarded is that one parent abused the other parent or the child, or one parent is severely disabled and can’t care for themselves (e.g. after a car accident), or the parents truly can’t communicate with each other even for basic child-care purposes.
One more possible outcome, though very uncommon, is split custody. Split custody is where one parent has physical custody of one child and the other parent has physical custody of the other. Courts would rarely order this.
To learn more about physical custody outcomes, read the post “50/50 Custody in Virginia” by Hofheimer Family Law Firm attorney Katie Carter. The rest of her posts are also worth reading. Though written primarily for mothers, much of the content is equally applicable to mothers and fathers.
Can a custody order be modified?
Custody orders can be changed if there’s been a “material change in circumstances” using form DC-630 (VA §20-108). One example of that is if one parent moves.
A parent wants to move
One example is if one parent decides to move. A parent who wants to move must provide at least 30 days notice to the court and the other parent (VA §20-124.5). If the move would get in the way of fulfilling the existing custody order, then either parent may move to have the order changed.
However, it can be challenging for the parent who wants to move to obtain sole physical custody of the child, as attorney Katie Carter writes in her post “Relocation and Virginia Child Custody”.
The notion of the status quo
When a parent wants to change the custody order, it’s important to consider how the parents have been caring for the child – the status quo – and why that needs to change.
If the status quo has been fine for the child, then judges will be reluctant to consider changing it unless there’s a good reason why doing so would be in a child’s best interest. Parents need to demonstrate how a change would be in their child’s best interest (using one or more of the criteria listed above).
In his excellent post “A Comprehensive Guide to Virginia Child Custody and Visitation“, Virginia attorney Jason W Weis expands on how to think about the status quo and discusses what it means for parents who don’t have physical custody.
What visitation rights do I have if I don’t have physical custody?
If a parent is not allocated physical custody of their child, they are usually still allocated visitation time, sometimes known as parenting time. The details depend on what’s in the custody order. Regular visitation might consist of caring for the child over the weekend. Visitation might entail longer periods of time too, such as two weeks during summer vacation.
In some cases, the court might order that a parent is not allowed to see the child. This usually only happens when that parent presents a clear danger to the child. Other times, the court might order visitation, but under supervision.
Read our section on modifying custody orders for more information about how parents can seek to change how much they see their child.
Can I access my child’s school records even if I don’t have any custodial responsibilities?
Yes. Unless the court-ordered custody order explicitly says otherwise, “neither parent, regardless of whether such parent has custody, shall be denied access to the academic or health records or records of a child day center or family day home of that parent’s minor child” (VA §20-124.6(A)).
Can I access my child’s medical records even if I don’t have any custodial responsibilities?
Yes. Medical records access works the same way as school records – both parents have access unless the custody order specifies otherwise.
What if one parent doesn’t stick to the parenting plan?
Sometimes parents violate the parenting time schedule by accident or carelessness – for example if they were running late to drop the child off at the other parent’s.
This can be incredibly aggravating because it demonstrates a lack of respect for the other parent and the importance of having them be a part of the child’s life.
Or, sometimes parents intentionally violate the parenting time schedule, which is even worse.
A parent’s first recourse should be to the parenting plan, which should include a provision about resolving disputes and violations of the parenting plan. Maybe that looks like discussing the problem with the other parent, or maybe it looks like hiring a mediator, or maybe there was some other resolution process in the plan.
If that doesn’t work, a parent can file a complaint with the court (VA §20-124.2(E)) filing a Motion for Show Cause Summons (form CC-1458) in the court that issued the original custody order (or the court the order was transferred to, if applicable). Then, the if the court finds that a parent willfully failed to comply with the custody order, it may find them in contempt of court and punish them accordingly.
What if one parent is in jail?
If one parent goes to jail, that would be a substantial change in circumstances. The other parent would be able to petition the court to change the parenting plan.
If the parent in jail didn’t already have a lawyer, they would probably be appointed one to act as their guardian ad litem and represent them in the court hearing.
What if one parent is in the military?
Virginia law specifies how to deal with child custody when one parent is required to move or is deployed as part of the military. Military parents should get familiar with the provisions in that law (VA §20-124.8).
If one parent is deployed, the court may issue a temporary order changing visitation rights during the deployment. When that parent returns, they can have the temporary orders ended. The courts will presume that the temporary orders should end unless the parent who did not deploy can prove otherwise. In other words, the presumption is that the custody allocated to the deploying parent should be restored.
Ideally, parents should address potential future moves and deployments ahead of time when crafting the permanent parenting plan during their divorce proceedings.
What if one parent is recovering from being addicted to drugs or alcohol?
In short, it’s definitely possible to get the courts to approve changes to the parenting plan to regain custodial responsibility – but it won’t be an easy path for most people.
It’s best to get help from a lawyer or a legal aid organization, such as Legal Services of Northern Virginia, Southwest Virginia Legal Aid, Virginia Legal Aid Society, Central Virginia Legal Aid Society, or Legal Aid Society of Eastern Virginia.
There are some great resources available to Virginia parents with questions about child custody.
Virginia Judicial System
The website of the Virginia Juvenile and Domestic Relations District Court provides information about the court and links to PDF forms for parents to use in custody and other types of cases.
Virginia Legal Aid Organizations & non-profits
Legal aid organizations help and represents low-income people in civil cases. They also publish guides that are useful for everyone going to court, including parents who are working with attorneys or want to represent themselves.
Law firm blogs
JustAnswer (chat with lawyers online)
If you have more questions, consider chatting with a lawyer. JustAnswer is an online service that lets you avoid the expense and hassle of booking time with attorneys.
Instead, you can send lawyers questions and get answers back quickly. It’s low-commitment and you’ll get access to experienced lawyers who know Family Law inside and out.
Virginia State Law
Finally, the Virginia state laws are public and quite readable even for someone with no prior law experience. The part about child custody is Chapter 6.1 Custody and Visitation Arrangements for Minor Children.
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