There are two types of custody in Virginia.  Legal custody refers to ability to make decisions related to the minor child such as education, medical, and religious upbringing. When possible, both parents should be involved in making major decisions for the child.  Physical custody describes where the child lives and according to what schedule.

WHO HAS THE RIGHT TO A CHILD IF THERE IS NO COURT ORDER? If there is no court order in place, the parties have equal rights to the child even if the parties aren’t married.

IS THERE A PARENTAL PREFERENCE IN VIRGINIA? Virginia law does not have a preference between mom and dad as many people often wrongly assume.  Instead the court considers the factors in Va Code § 20-124.3 to determine what custodial arrangement is in the child’s best interests.

WHAT IS THE DIFFERENCE BETWEEN JOINT OR SOLE CUSTODY? The award of sole custody for both legal and physical custody is difficult to obtain. The court will try to award both joint legal and shared physical custody when it is able to determine that they are in the best interests of the child.


The court looks at the following factors:

  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 family abuse or sexual abuse;
  10. Such other factors as the court deems necessary and proper to the determination.

CAN A CHILD DECIDE WHICH PARENT HE/SHE WILL LIVE WITH? As seen in the factors listed by the Virginia Code, a child’s preference is only one factor that will be considered by the court once the court thinks that the child is mature enough to express his/her preference.

CAN A CUSTODY ORDER BE MODIFIED WHEN THERE IS A MATERIAL CHANGE OF CIRCUMSTANCES? A custodial arrangement can be modified either by agreement between the parties or upon a material change of circumstances that warrants a modification.  The courts recognize that as a child gets older, their needs will change.  It is important to note though that the status quo is an important consideration in determining whether or not to change an existing custodial arrangement.  To learn more about custody modification, read our blog post here.

WHAT ARE SOME COMMON PARENTING SCHEDULES? Many parents will share the children on a 50/50 schedule.  This can be accomplished a variety of ways but some of the most popular would be: 1) an alternating week on, week off schedule;  2) a 2-2-3 schedule with the parents alternating 3 day “weekends”; or a 3) 3-4-4-3 when one parent would get 3 days during the first week and then 4 days the following week and vice versa for the other parent.

Other options are a 60/40 or a 70/30 parenting schedule.  There is no one-size, fits all custodial schedule.  Each schedule can be customized to fit the needs and preferences of each family.


  • Age of the children;
  • Time away from each parent;
  • The number of transitions for the child/children on a weekly basis;
  • Possible dinner visitations for the noncustodial parent during the custodial parent’s time;
  • The location and time for drop off and pick up;
  • Holidays and birthdays;
  • Rights of first refusal; and,
  • School breaks (Winter/Spring/Summer).


As Virginia divorce attorneys, we are well-versed in VA child custody laws.  We can also help you determine how child support in Virginia will be set depending on your custody schedule.  Read more about how we have helped our clients here.

If you want to speak with one of our experienced Virginia divorce lawyers to discuss your case, reach out to us at either our Manassas and Fairfax locations to schedule.