This article reviews child custody and visitation in Virginia, the process to file for custody and visitation, and how a court determines those issues.
What is Child Custody?
There are two types of custody: legal and physical. A parent who has physical custody has the responsibility to care for the child. A parent who has legal custody has the authority to make decisions concerning the child. Some parents share both physical and legal custody, while other parents designate a primary parent (sometimes referred to as the parent with “sole” or “primary” custody).
What is Visitation?
Visitation, also called “parenting time,” is referred to in the laws of Virginia but is not defined. It is known as time that is set aside for a parent to visit the child. Usually, if one parent has visitation, the other parent has physical custody. When a court order provides for a parent to have visitation and sets a schedule for the visitation, the amount of time set forth in the order is the only time the visiting parent has with the child (absent an agreement between the parents for more time). Therefore, it is important to specify in the order or agreement:
• What time the visiting parent may spend with the child (dates, times, exceptions for holidays, birthdays, and summer),
• Who is to transport the child to and from each parent,
• What conditions, if any, the visiting parent might have during their visitation (limiting use of alcohol, smoking, and drugs, limiting who may also visit with the child during the time—no girlfriends, boyfriends),
• Who may babysit the child if a visiting parent needs to work,
• And much more!
What is the legal standard for custody and visitation cases?
Custody and visitation of children in Virginia are determined according to the best interest factors, which are ten factors a court must consider. The best interest factors include the age and physical and mental condition of each parent and each child, the relationship between each child and each parent, the needs of each child, and any history of family abuse, among other factors.
Changing custody and visitation if there is already a custody and visitation order in place
A court may change a the order when (1) there has been a material change in circumstances justifying the change, and (2) a change to custody or visitation is in the child’s best interests.
The circumstances that could constitute a material change in circumstances are limitless. A new school for a child could be a material change in circumstances in one case but not another. Showing there has been a material change in circumstances is only limited to the facts of your case, but the simple passage of time is not necessarily a material change in circumstances.
COMMON QUESTIONS ANSWERED
When there is an agreement on custody and visitation:
Question: My ex and I decided on a custody and visitation arrangement, so why do I need an attorney if we have reached an agreement?
Answer: A family law attorney can assist you by ensuring the agreement that you and the other parent reached is correctly written, has the legal notices that are required by law, and is enforceable in court. An attorney may even save you a trip to court by handling the matter outside of court.
When there is no agreement:
Question: I need to file for custody and visitation of my child. Where do I go; what do I file?
Answer: If the parties are not married, a parent wishing to file for custody and visitation of a child can file petitions in the local juvenile and domestic relations district court. Most courts have an intake office where the petitions can be obtained and filed. If the parents are married, a parent can file in the juvenile and domestic relations district court by filing petitions for custody and visitation, or a parent can file a divorce in the local circuit court. Speaking with a knowledgeable family law attorney is a good idea because the attorney can advise you on which court to file in and why (there might be strategic reasons to file in one court instead of another).
Changing the custody/visitation order:
Question: I already have a custody and visitation order, but it needs to be changed. Do I just tell the court why it needs to change?
Answer: When an order needs to be modified, a parent must prove (1) there been a material change in circumstance affecting the best interest of the child and (2) a modification is in the best interests of the child.
A child’s preference:
Question: My child is 15 years old and wants to live with me. Will the court consider his choice?
Answer: A court can consider the child’s preference if the court determines the child is of reasonable intelligence, understanding, age, and experience to express a preference. The older the child and the more responsible the child is, the more likely for the court to give greater weight to or rely more heavily on the child’s preference. Remember: a child’s preference is only one of ten factors the court considers when determining custody and visitation.