Custody FAQ Sheet


Of all the issues that can arise in a Family Law case, custody is one of the most emotionally difficult; no loving parent wishes to be separated from their child or to be absent from their day-to-day life. In addition, practical problems regarding visitation of children, major life decisions and financial responsibility for children make this one of the most serious issues surrounding separation and divorce. These FAQs are meant to serve as a primer on how custody is handled in many Juvenile and Domestic Relations Courts as well as the Circuit Courts of Virginia. As with any matter this personal, each case will turn in large part on the facts and often the personalities involved. However, the following is meant to serve as a general outline of what a court is likely to look at when it is called upon to make a decision regarding custody, and may not reflect the issues and results in any particular case.

1.What exactly does the term “custody” mean?

At the outset, it is important to distinguish between “physical” and “legal” custody. “Physical custody” is defined in Va. Code Section 20-146.1 as the “physical care and supervision of a child.” When a custody ruling is made, a court generally will award one party “primary physical custody,” which means that this party will be the one who is primarily responsible for the day-to-day care of the child. The court may also make a ruling regarding the award of “legal custody”, which per Va. Code Section 20-124.1 grants a party the authority to make major decisions regarding a child, such as education, religious upbringing, and major medical decisions. In the proper case, a party may be awarded “sole custody,” which places legal and physical custody with one party, both parties may be granted joint physical and legal custody, or primary physical custody may be granted to one party while both parties share joint legal custody.

2. What is “joint legal custody?”

In many cases where primary physical custody is awarded to one party, a court may award “joint legal custody” to both parties, which allows both parents to be involved with decision-making on major issues regarding the child. This is usually done where a court is satisfied that the parties are able to work constructively together for the child’s benefit. However, as a practical matter such an arrangement does not give the party who was not awarded physical custody a “veto power” over these decisions. It merely requires that the party be consulted regarding them and that he/she be allowed input regarding the decision; the final decision is generally made by the party with primary physical custody. If it appears that the parties cannot work together for the best interests of the child, for instance if a party’s input is routinely ignored without good reason or a party refuses to cooperate constructively in the decision-making, a court may use this as grounds to alter the custody arrangement.

3.Are there any other types of custody that I should be aware of?

People often confuse joint custody with “shared” or “split” custody. These terms are used by the court specifically when making decisions regarding child support. As defined in Virginia Code Section 20-108.2(G)(3)(a), “shared custody” describes a situation where one party has physical custody or visitation of a child for more than 90 days of the year, with a “day” being defined as a 24-hour period. “Split custody,” as defined in Va. Code Section 20-108.2(G)(2) describes a situation where the parties have more than one child and physical custody of one or more of the children is granted by the court to different parents. These distinctions can also be important as they affect the manner in which child support is calculated.

4.When and where should I file for custody of the children?

A custody case may be filed whenever the parents no longer reside together. As a custody matter can often be initiated sooner than a divorce, it may be filed and heard prior to the time that a Complaint for Divorce can be filed. In cases that do not involve divorce, custody cases are generally heard in the Juvenile and Domestic Relations District Court for the county in which the child resides. This is accomplished by filing a Petition for Custody with the Clerk’s Office for that court. When custody is part of a divorce case it is included as part of the relief sought in the Complaint for Divorce filed in the Circuit Court.

5.What are the advantages of filing for custody prior to filing for divorce?

In order to file for divorce, it is first necessary to establish the grounds for divorce. In most cases a “no-fault” ground is used, which requires parties with children to be separated for a period of more than one year prior to filing. However, a custody matter can be filed as soon as the parties have separated. Resolving the custody issue prior to divorce has the advantage of providing stability for the children involved and removes one of the most difficult issues from the divorce proceeding.

6.What does the court look for in awarding custody?

The factors that a court considers in determining either custody or visitation are set forth in Virginia Code Section 20-124.3. Some of them are fairly straightforward, while others unfortunately suffer from a bit of “legalese.” What follows is a summary and where necessary, a translation into everyday English:

A.The age and mental and physical condition of the child, giving due consideration to the child’s changing developmental needs (i.e., is the child generally healthy, and if not what conditions does he/she suffer from; is the child developing normally for his/her age, and if not what if anything is being done to aid the child?);

B.The age and physical and mental condition of each parent (to be clear, the phrase “physical and mental condition” generally refers to whether either parent has been diagnosed with any sort of condition, disease or disability, whether physical or psychological).

C.The relationship existing between each parent and each child, including the degree to which each parent has a positive involvement with the child’s life, and that parent’s ability to accurately assess and meet the child’s emotional, intellectual and physical needs (this would call for evidence of actual parenting such as feeding, bathing, teaching, and spending time with the child are particularly important).

D.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 (is there an extended family present? How would an award of custody affect these relationships, for instance if a parent wishes to move to a different area?).

E.The role that each parent has played and will play in the future, in the upbringing and care of the child (how is caregiving divided between the parties and how will that care be provided now that the parties are no longer living together?).

F.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 (in the absence of any evidence to suggest that it would be detrimental to a child, courts are generally eager to allow each parent to have as active a role in a child’s life as the circumstances of the case permit. A parent who demonstrates that he/she is reluctant to support this goal without offering a good reason why risks the real danger of damaging his/her case).

G.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 (even though the parents have separated, they are still expected to act in the child’s best interests; this is best demonstrated by remaining actively involved in the child’s life and cooperating with the other parent as much as possible regarding issues affecting the child).

H.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 (it is important to note that there is by law no age at which a child gets to decide which parent he/she wishes to live with; the key word here is “reasonable,” which is always a question of fact to be determined by the court. A judge will listen to the child’s preference and the reasons for it and decide whether or not that preference is reasonable and consistent with the child’s best interests; the older a child is the more weight the judge is likely to give to his/her preference, but the decision ultimately is for the judge to make).

I.Any history of family abuse (violence) or sexual abuse. A finding of abuse is grounds for a judge to consider whether a parent’s denial of access or visitation with a child is reasonable (see “F,” above).

J.Such other factors as the court deems necessary and proper to the determination (this is a “catch-all” provision that allows the court to consider any relevant evidence that does not fit into the previous categories).

The statute requires the judge to communicate with the parties the basis of the decision, either orally or in writing. With the exception of consent orders where the parties have agreed to a custody arrangement, the communication must set forth the judge’s findings regarding the above factors. Failure of a judge to consider all of the statutory factors and/or to set forth the basis for the decision is considered reversible error on appeal. It is therefore always advisable to frame evidence with these factors in mind.

7.How do I prove these factors?

The burden of proof is by “preponderance of the evidence,” in other words, the party with the stronger evidence is the party that should prevail at hearing. Bear in mind that the “stronger evidence” doesn’t mean the most evidence; it means the better evidence. Evidence of any of these factors can be proven by the testimony of the parties and their witnesses, or by documentary evidence such as school and medical records. Understand also that in order to gain custody, it is not necessary to prove the other parent to be unfit; what matters is whether the decision to grant custody is best for the child, given the factors set forth above and the facts of your case.

8.In a contested custody case, is there a presumption in favor of either parent?

Per terms of Va. Code Section 20-124.2(B), there is to be no presumption or inference in favor of one parent over the other. But although there is no legal presumption, a party should always consider how to prove that the best interests of a child would merit an award of custody, particularly with regard to infants and very young children.

9.What, if any rights does a father have regarding child custody?

Bearing in mind what has been stated above, the rights of the father – or for that matter the mother are always subservient to what is best for the child.

10.Are there issues that are best to avoid in a custody case?

Remember that the factors expressed in #6 above are the ones that the court will deem most significant. It can be very easy in a contested case to get bogged down in matters such as the type of hair or clothing styles a parent allows a child, or the types of meals a child eats. Unless it can be shown that the best interests of a child are adversely affected (for instance, if the meals are consistently junk food and the child’s health is impaired, or if the clothing style is clearly inappropriate), the court is unlikely to be interested in any information of this sort.

11.Once a custody order is entered, how difficult is it to change?

Since the best interest of the child is the ultimate goal of any custody arrangement, a party is always free to petition the court for a change in custody under the proper circumstances. However, once a custody order has been entered, the party seeking to modify custody must prove two things: first, that since the entry of the prior custody order a material change of circumstance involving the child has taken place, and second, given the existence of that material change of circumstance the best interests of the child would be promoted by modifying the custody arrangement. As a general rule of thumb, once custody has been established courts are reluctant to change it and will only do so where the two above factors are proven. The most significant reason for this concerns the belief that one major way of promoting the child’s best interests is to encourage stability regarding custody. But the burden to of proof to show these is on the moving party, the party seeking to change the previously ordered custody arrangement.

12.What would be considered as a material change of circumstance?

There is no set list, but aside from such obvious examples as abuse and neglect, it could include a party who is no longer able to adequately care for a child due to a physical or mental condition or illness, a party who wishes to move with the child a great distance, a party who interferes with the visitation or contact of the other party, or in situations where joint legal custody has been awarded a party does not cooperate in allowing the other party input or otherwise refuses to participate in good-faith in decisions regarding the child.

13.Is it considered a material change of circumstance if a custodial parent wishes to relocate?

Virginia courts have long held that the relocation of the parent with primary physical custody of a child may be considered as a material change of circumstance, satisfying the first of the two factors cited above. Once the change of circumstance has been established, the court must then consider whether the relocation is in the child’s best interest. It is extremely important to note that this issue is separate from the custodial parent’s best interest. For instance, the mere fact that the custodial parent is relocating due to having received a better offer of employment than his/her current position does not by itself prove that he/she should retain custody. The court will look at all of the factors set forth in #6, above that are relevant to the case to determine the child’s best interest.

14.What if the parties are able to agree to a custody arrangement?

It is always preferable for the parties to come to a mutual agreement regarding custody, as it is both emotionally and financially less costly, and people generally are more inclined to follow something they have agreed to rather than a court order that has been imposed upon them. Having said that, even in instances where there is an agreement it should be reduced to writing and incorporated into a court order. Although this may seem troublesome, it has the double advantage of clarifying exactly what the terms of the agreement are and of making those terms enforceable through the court’s power of contempt, should that ever become necessary.

As suggested above, the information set forth in the FAQ sheet is meant to represent a broad overview of the law concerning custody in Virginia and should not be considered an exhaustive review of legal advice. Please bear in mind that each child custody matter will turn on its own set of specific facts regarding the parties, their circumstances, and most importantly how the best interests of the child can be served. Any party currently considering a suit for custody of a child is strongly encouraged to consult a lawyer of his or her own choosing.

The author of this article is Bruce Eells, Esq.

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