WHAT TYPES OF CUSTODY ARE THERE?
There are two types of child custody in Virginia – legal custody and physical custody. Legal custody refers to the care of the minor child or children and the ability to make important decisions for the child, such as his or her 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. It refers to the daily routine care of the child. Physical custody is often referred to as visitation or parenting time.
WHAT DOES THE BEST INTERESTS OF THE MINOR CHILD MEAN?
The custody of the child will be determined in the best interests of the minor, which are further explained below. The judge will need to consider important factors to determine who will get custody of the child, including the following:
- 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 family abuse or sexual abuse;
- Such other factors as the court deems necessary and proper to the determination.
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 Virginia Code § 20-124.3 to determine what custodial arrangement is in the child’s best interests. There are things that parents can do to improve their chances of being awarded primary custody of the child or receiving more visitation time. These include but are not limited to meeting the child’s emotional, physical, and psychological needs, and promoting a relationship with the other parent. On the contrary, there are also things that parents can do that will have detrimental consequences on their child custody matter. These include, but are not limited to insulting the other parent in front of the child, using the child as a messenger, refusing to abide by a court order, and abusing drugs or alcohol. While every case is unique, parents should be mindful of what they do when in front of a judge, out in public, on social media, or even in the privacy of their own homes. This is why it is important to seek advice from a seasoned family law attorney to prepare you in the event that you will need the court to make the determination.
WHAT IS THE DIFFERENCE BETWEEN JOINT OR SOLE CUSTODY?
Joint custody refers to both parties having equal authority and responsibility for the care of their child. Sole custody means that one of the parents has been awarded the primary authority and responsibility of the child. The award of sole custody for both legal and physical custody is difficult to obtain. These cases are usually limited to cases where there is verifiable abuse or neglect or when the parties are completely unable to work together in the best interests of their children. The court will try to award both joint legal and shared physical custody when it can to determine that they are in the best interests of the child.
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. There is no specific age at which a child can decide which parent he or she will live with. If the court has deemed that the child is reasonably intelligent, understanding, and has the age and experience to express his or her preference, the court will consider the child’s preference.
WHAT HAPPENS WHEN PARENTS CANNOT AGREE ON A CHILD CUSTODY ARRANGEMENT?
When both parents cannot come to terms with the custody arrangement of the minor, the parties may be ordered to attend mediation, or they may choose to do so willingly. If mediation is not successful, the judge will set a date and time for a formal court hearing in which both parties present their evidence and testimony and the judge makes the final determination of what is in the best interests of the child. In most cases, the court will only have a limited time to hear your child custody matter. No judge will ever be able to know you, the other parent, or your children better than you. They must follow the rules of evidence and exclude statements, documents, and other proofs if not properly admitted. In most cases, the best outcome for your child is a a negotiated or mediated custody arrangement.
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. For a modification, new facts must have risen since the entry of the previous custody order that change the circumstances for the child. The courts recognize that as a child gets older, their needs will change and that may warrant a modification. It is important to note though that the current custody arrangement or 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?
Parenting plans help the parents set a visitation schedule that best fits their unique lifestyles and circumstances. Parenting schedules are as varied as parents, their children, their work schedules, and the children’s schedules. Many parents share their 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.
Some parents have time with their children every other weekend and may have one weeknight during the week. A weekend can be Friday to Sunday or Friday to Monday depending on the schedules of the parents, distance between the parents, and the needs of the child. Other options are a 60/40 or a 70/30 parenting schedule. Some parents see their children primarily during school breaks and summer due to physical distance. There is no one-size fits all custodial schedule. Each schedule can be customized to fit the needs and preferences of each family.
WHAT ARE SOME CONSIDERATIONS WHEN AGREEING UPON A CUSTODIAL SCHEDULE?
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).
CHILD CUSTODY ATTORNEYS SERVING FAIRFAX AND MANASSAS, VIRGINIA
As Virginia divorce attorneys, we are well-versed in Virginia 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.