Child custody cases can take one of two forms, contested or uncontested. In an uncontested matter, both parents would reach an agreement on their own, without the need for court intervention. In a contested child custody case, the parents cannot reach an agreement on custody and visitation, so the case needs a judge to make the decision.

You must usually file a child custody petition with the Juvenile and Domestic Relations (JDR) Court if you are unmarried.  Married persons generally could file both in JDR and in Circuit Court where divorces are handled. The county where the child last resided for six months consecutively is where you need to file the petition. In the initial hearing, the judge can enter a temporary custody and a visitation order but does not always do so. In all contested matters, the judge will also order all parties to attend a parenting course.

The judge has discretion to appoint an attorney to represent the child’s interests, known as a Guardian ad litem. The Department of Social Services (DSS) may also become involved to do a home studies report in a limited number of cases. A Court Appointed Special Advocate (CASA) may also be appointed to investigate, but that practice is very county-specific and rare in most localities.

While the courts prefer that both parents are involved in a child’s life, the most important determining factor on custody is what is in “the best interest” of the child. If there is reason for the court to only award custody to one parent, it will. It is important to note that there are two types of custody — legal custody and physical custody. Most cases result in the parents having joint legal custody, but in many cases, it is possible to obtain sole legal and/or physical custody. Even if you are granted sole custody, the other parent is typically granted visitation rights in most cases unless the other parent has been declared unfit, is abusive and/or there is a total termination of parental rights.


The judge also looks at a variety of factors when deciding legal and physical custody of a child. Some of the most important factors can include your role in raising the child and what role you will play in the child’s future. Other factors that can impact the judge’s decision include:

  • What is the age and mental condition of both parents and the child?
  • What are the needs of the child?
  • What is in the best interest of the child?
  • What was the relationship between the parents and child like?
  • Is there any history of abuse or violence in the family?
  • The desire for each parent to cooperate and resolve disputes, support the child, remain in contact with the other parent, and keep a close relationship with the child.

There are a variety of issues that can hurt your chances at custody. Things like a history of illegal drug use or alcohol abuse may come into play. Does one parent have a criminal history or is there any physical impairment or mental condition that could affect him or her from taking care of the child?  Domestic violence can also be a big factor.

Sole Legal Custody vs. Joint Legal Custody

If the court awards you both sole legal custody, it means you are the one who has the authority to make all major decisions for your child. If the court awards sole legal custody, there had to have been a compelling reason for the court to determine that the other parent’s ability to make sound decisions in their child’s best interests was compromised. The courts may award sole legal custody when one parent denies the other parent access to the child or alienates him or her. In a case where there is a complete communication breakdown and the couple cannot agree on anything, or one parent refuses to communicate, the court may also decide to award sole legal custody.


Joint legal custody is where you and the other parent have equal power to make all decisions for your child.  It does not mean you will always agree, but joint legal custodians have equal rights.  Judges will often specify the terms of joint legal custody like how the parents must confer with one another on decisions, how the parents will communicate and the proper behavior when communicating.  Even high conflict cases can result in joint legal custody or a hybrid approach where one parent has final decision-making authority in the event the parties cannot agree on a parenting decision.

Sole Physical Custody, Shared Physical Custody and Split Custody

Sole physical custody means that the non-custodial parent has 89 or less 24-hour periods with the child per year.  Awarding sole physical custody where the non-custodial parent has no time is also done rather infrequently. The courts do not like to completely sever a parent’s right to have access to their children. Even in situations where one parent is unfit due to mental health issues, addiction, or even abuse, a court may still award restricted visitation under supervision.

Shared physical custody is where the non-custodial parent has at least 90 24-hour period per year with the child, all the way to equal custodial time.  While most courts in Virginia do not generally default to equal time-sharing, many judges will grant shared custody to involved parents.

Split custody means that the children are split between two parents.  This often happens sometimes with older or teenage children or based on school considerations.  Split custody is more rare and generally judges tend to keep siblings together in most families.

Modification of Custody and Visitation

Custody and visitation for children is always modifiable.  That means that until the child reaches the age of 18 the court can change custody and/or visitation as many times as is necessary.  In such instances, the parent seeking to change custody must prove there was a “material change in circumstances” which justifies changing custody.  Generally, a material change in circumstances is interpreted broadly, but basically is something is now different with the parent and/or the child than existed at the time the last custody order was entered.  Custody and visitation changes can include both changes in legal custody and physical custody, as well as changes to the visitation schedule the non-custodial parent has.

Child Abuse and Neglect

Child abuse and neglect falls under a variety of categories. It is important to be able to recognize each and understand what constitutes abuse and neglect in the state. If you suspect a child is being abused, or your own child has been abused by someone, it is important to reach out to a qualified family law attorney. Our team at WhitbeckBennett has a well-documented history of helping families through emotionally sensitive situations that involve child abuse and neglect.

The Virginia Administrative Code defines five categories of abuse and neglect. However, injuries fall under two categories: physical and mental. Virginia also recognizes the theory of threat of injury. Child Protective Services workers look at a variety of factors surrounding the alleged abuse and may determine there was intent to harm even if no physical injuries were sustained.

Physical Abuse

When people think of child abuse, physical abuse is probably the most recognizable type. Physical abuse can occur from a parent, a caretaker, or someone the child has contact with outside the home. It encompasses anything that was not accidental and causes physical injuries, disfigurement, and/or death. Common types of physical abuse include:

  • Asphyxiation
  • Bone fracture or sprains
  • Brain damage
  • Burns
  • Cuts, abrasions
  • Poisoning
  • Gunshots and stabbing

Exposure to certain controlled substances is also classified as physical abuse. Selling or producing drugs in front of a child can threaten the child’s safety, especially manufacturing drugs in meth labs.

Physical Neglect

Another category of abuse is physical neglect, where the child is not provided adequate food, shelter, clothing, or proper supervision. Failure to provide adequate personal hygiene and cleanliness can be classified as physical neglect. Leaving your child without a proper caretaker can be considered abandonment. Leaving your child in the care of someone who is, or should be, registered as a sex offender can be physical neglect in some cases as well.

Medical Neglect

If a parent or caretaker fails to get necessary medical, mental, or dental care, there may be medical neglect. This section does not apply to the failure to obtain preventive care, and religious and cultural beliefs are taken into account. Therefore, determining medical neglect is very subjective, and each case is evaluated based on its own specific circumstances.

Sexual Abuse

While sexual abuse is also physical abuse, it is its own section under Virginia law. Sexual abuse can include sexual exploitation, which is where the parent or caretaker encourages or permits a child to engage in a variety of sexual scenarios, including pornographic photography and/or prostitution.

Mental Abuse or Neglect

The final category of child abuse centers around mental abuse or neglect. Not all injuries are visible to the naked eye. Mental neglect or mental abuse can include a wide spectrum of situations. This type of abuse can result from ignoring a child to being overprotective. Bizarre discipline or creating an atmosphere where the child is fearful or is bullied are also classified as mental abuse or neglect. To qualify as mental abuse or neglect, the CPS worker must get documentation that supports a link between a caretaker’s actions and the child’s mental dysfunction.

Grandparents Rights 

If you are a grandparent trying to get custody of a child or secure rights to see your grandchild, it is not an easy process. A grandparent can petition for custody or visitation on their own, or it can be included in a petition that is filed by the non-custodial parent.

In a number of states, courts have ruled that statutes providing for grandparent visitation violate the federal or the respective state constitutions. While several states have revised the statutory visitation provisions, the constitutionality of these statutes may still be in question. If you want to petition for grandparents’ rights, it’s imperative you contact a family law attorney to help you through this complex process.

Courts will give automatic preference to your grandchild’s parents when it comes to custody. If both parents agree that they want to keep their child away from you as the grandparent, it is not likely the court will go against both parents’ wishes. In order to get visitation rights, you would need to prove that your grandchild would suffer actual harm if he or she did not have your visitation. Proving this is extremely hard, especially in situations where the parents are not allowing visitation in the first place.

Defining Actual Harm

To define “actual harm” in this scenario requires evidence than your grandchild would suffer due to a lack of contact with you. You must prove that there will be certain harm that comes to him or her without you being in your grandchild’s life.

Asking for Visitation

Depending on your state’s laws, you may have the right to request visitation. Don’t be surprised if the court process appears cold and callous. The court is required to look out for the child’s best interest. That means you could be asked to submit to a psychological evaluation or a mental health exam.

Grandparents Loss of Legitimate Interest

There are rare cases where a grandparent may not qualify as having a legitimate interest as outlined in the state laws. This is when the parental rights of the child’s parents have been terminated or when your grandchild has been adopted by anyone other than his or her stepparent.

Ways to Rebut Parental Custody

If you are wanting to get custody of your grandchildren, you have to rebut the automatic presumption that their parents are the best option for custody. Some of the ways you can do this include:

  • Proving the parents are unfit;
  • Abandonment by the parents;
  • A previous divestiture order;
  • Parents voluntarily relinquishing custody; or
  • Unique circumstances and facts that prove there is an extraordinary reason your grandchild should be taken from his or her parent(s).


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