Family Law

How do Judges Decide Child Custody in Virginia

By Kristina Otterstrom, Attorney
No single factor will determine the outcome of your case. However, a basic understanding of custody rights and responsibilities can give you an advantage in a custody case.

Custody Basics in Virginia

Custody orders will decide two main types of custody—physical and legal. Physical custody refers to where the child lives. Legal custody is a parent’s right to make decisions concerning the child.

In a joint custody arrangement, parents can share physical and/or legal custody. For example, both parents may have the right to make medical or educational decisions on the child’s behalf even though the child’s primary residence is with one parent. A parent with sole legal custody has complete responsibility for and control over medical, legal, religious and educational decisions regarding the child. However, a parent without legal custody is still entitled to receive medical information regarding the child or the child’s school report cards.

Parents who share joint physical custody have approximately equal time with the child, not necessarily exactly equal time. You may have 3 nights per week with your child and your ex may have 4 nights per week. Even in cases where parents share physical and legal custody, a judge will designate one parent as the custodial parent. The custodial parent has the final say in situations where the parents can’t agree.

How Does a Judge Determine Custody?

A judge will evaluate several factors to determine the custody arrangement that’s best suited to a child’s needs. When possible, a judge will try to maximize each parent’s contact with and responsibilities over a child. To determine a child’s best interests, judges in Virginia will consider the following:

  • the child’s age and physical and mental health
  • each parent’s age and physical and mental health
  • the child’s relationship with each parent
  • the child’s developmental needs, including special needs, if any
  • each parent’s role in the child’s upbringing
  • each parent’s willingness to support a relationship between the child and the other parent
  • the parents’ ability to cooperate on matters involving the child
  • the child’s preference, if the child is of a sufficient age, intelligence and understanding
  • a history of family abuse, if any, and
  • any other factor relevant to the child’s best interests.

Although courts prefer to grant joint custody to maximize each parent’s time with a child; it’s not always practical or possible. In addition to the above factors, a court may also consider parents’ geographical proximity and the parents’ ability to work together. When parents live close to one another and have a good working relationship, a judge is more likely to award joint custody. In cases where parents can’t get along—and tensions run high—a judge is unlikely to award joint custody.

Virginia law also allows a judge to grant visitation or custody to a nonparent such as a grandparent, stepparent, blood relative or other family member with a legitimate interest. A judge may award visitation or custody to a nonparent in very limited circumstances where the parents are deceased or a court has terminated parental rights.

When Can Parents Make Their Own Custody Agreements?

Judges encourage parents to negotiate their own custody agreements when possible. In fact, in many cases, a judge will order parents to attend mediation before scheduling a custody trial. Parents can use a mediator or work out a custody settlement on their own. It’s important to resolve all, not just some, custody issues in your settlement. A judge won’t sign off on an incomplete custody agreement.

A good rule of thumb is that your custody settlement should resolve all custody matters at issue now and those that might come up in the future. Specifically, a complete agreement will likely address the following:

  • physical and legal custody
  • regular and holiday/summer break visitation
  • location of child exchanges
  • each parent’s responsibility for transportation costs associated with visitation
  • child support
  • medical insurance
  • custody and visitation, and
  • phone communication between the child and parent when in the other parent’s care.

A judge may turn your agreement into a custody order if it’s complete, fair, and addresses the child’s best interests. Both parents are obligated to follow the terms of a custody agreement until a child reaches the age of majority or the judge modifies the agreement.

When Will a Judge Modify Custody?

Either parent can file a request to modify custody if there’s been a major change in circumstances that affects the child’s best interests. Some life changes like a parent’s new job or new house won’t necessarily justify a custody change. A judge may modify custody if the change in circumstances is something that impacts a parent’s ability to care for the child like a parent’s terminal illness or constant work travel.

The court will schedule a hearing on a parent’s custody modification request. You should come to the hearing prepared with all evidence and witnesses that support your claims for custody. A judge won’t alter custody unless the change is necessary to meet a child’s emotional or physical needs.

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