Virginia Custody & Visitation Determinations – What the Court Considers | Part 1

Child custody and visitation in Virginia are determined based on the best interests of the child, after considering 10 specific factors regarding the parents’ physical and mental health, any history of physical abuse in the family, the child’s unique or exceptional needs (if any), and other related issues (Va. Code Ann. § 20-124.3). In making a decision on custody and visitation, whether for the first time (as in a divorce or other initial custody/visitation proceeding) or in a modification of an existing custody and visitation schedule, the judge will consider each of these 10 factors in light of the evidence (documentation, witness testimony, etc.) presented at trial in the custody/visitation case. After performing this analysis, the judge will enter an order memorializing the terms and schedule of the custody/visitation that he or she believes to be in the child’s best interests and describe which factors—and why—guided their decision. 

It is normal and expected for any parent involved in a custody and/or visitation dispute to feel emotional and nervous about the outcome of your case, due to the stakes of what is being determined and the potential risk of harm to your child if the judge makes a wrong decision. Then, if the outcome of your case is something other than what you wanted at the outset, it’s easy to feel as though the cards were stacked against you, so to speak, for a reason outside of your control such as gender bias of the judge, failure to consider pertinent facts or evidence, etc. However, a Virginia court’s ruling on custody/visitation is required, according to the law, to be made upon its consideration of these factors in light of what it believes will ultimately serve the best interests of the child – which itself is paramount above all else. Based solely on the above-referenced 10 factors, in light of the evidence presented at trial, and with the best interest of the child being paramount above all else.

This blog will explain 4 of the individual factors below (please note that the order in which the below-described factors are listed is not the same order as such factors are presented in the relevant Virginia Code section, but are instead grouped by general topic for reader convenience):

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs

 This factor focuses on the age of the child and any potential mental or physical disabilities or other conditions that should be taken into account when deciding which parent is better suited to attend to the child’s unique needs. For instance, a child with severe physical disabilities will require constant hands-on care from his or her parents, and if one parent has been staying at home to care for the child while the other has been out of the home working to provide for the family, the caregiver-parent will likely be better equipped to properly care for the child. The child’s age is an important factor to consider, as well, for somewhat obvious reasons: young infants who are still breastfeeding have very different daily needs than young teenagers, and the parental role changes as the child’s needs shift over time.

 2. 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

This factor explores the child’s relationships with friends and family members other than the child’s parents. This can include siblings, half-siblings, stepfamily (including stepparents and stepsiblings), grandparents, aunts, uncles, cousins, etc. The court’s analysis of this particular factor involves consideration of whether a certain custodial arrangement/visitation schedule will promote or adversely affect the child’s existing relationships with various family members, and whether those relationships are essential for the child’s overall well-being. For example, if a child is very close with her maternal grandparents, the child’s relationship with the grandparents is healthy, and the grandparents’ regular involvement in the child’s life is beneficial for the child, the court will take this into account when determining whether the father’s proposed custodial schedule would result in the child spending significantly less time with her maternal grandparents. A similar analysis would occur if the child’s relationship with certain family members is unhealthy or places the child in an unsafe or inappropriate environment, and the proposed custodial schedule would limit the child’s contact with those persons or provide an environment where the child could enjoy those relationships in a more secure environment

In addition to the family relationships described above, this factor also considers the child’s relationships with his or her friends and other peers. This includes the child’s social circle as a whole – other children in or around their same age group with whom the child regularly interacts, whether in school, daycare, other childcare, extracurricular activities (sports teams, clubs, etc.), and neighborhood friends. If a particular custodial arrangement/visitation schedule would promote the child’s overall well-being by either limiting the child’s contact with these peer groups/friends (for example, if the child is a teenager and is “running with a bad crowd”, so to speak) or provide the child the ability to maintain her healthy, existing peer relationships maintain the frequency and quality of healthy peer relationships, the judge will take that into account when making its ruling on custody and visitation. 

 3. 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 

 This factor considers the child’s wishes for his or her desired custodial/visitation schedule, but only if doing so is age-appropriate and contextually relevant for the child’s developmental stage. Typically, judges strongly prefer not to involve children in custody/visitation disputes in ongoing litigation, particularly because this type of involvement often results in the children having to testify in court, which is understandably a very stressful and potentially traumatic experience for the child. The younger the child, the lower the likelihood the court will make its ruling based on this factor. Generally, a judge will not allow (or will significantly limit) the testimony of a young child. Moreover, the courts are not ignorant of the fact that many children will express a preference for one parent over the other simply because one parent is less strict or allows the child free reign when in his or her care, while the other has more stringent rules in place at their house. One way the court can hear the child’s preference per this factor is through a guardian ad litem (a licensed attorney qualified to serve as a representative of the child in these types of matters), who is appointed by the court upon the request of one or both parties

4. 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

This factor considers the relationship between each parent and the child, and how each parent has been involved in the child’s life thus far, and to what degree. It is important for a parent in a custody/visitation dispute to demonstrate that he or she has a close and meaningful relationship with the child, has been a stable and reliable figure in the child’s life, and provides a healthy living environment for the child that ultimately serves the child’s overall happiness and well-being. A parent should be able to demonstrate that they can meet the child’s emotional needs by identifying any problems that may exist with the child and seeking appropriate help, and also meeting the child’s day-to-day emotions.

A parent should be prepared to show that he or she is an active participant in and makes actual efforts to meet the child’s intellectual/academic needs, specifically by being involved and hands-on in promoting the child’s unique educational pursuits. An example of this would be if the child requires an Individual Education Plan (“IEP”) or has other special education needs, the court will consider each parent’s involvement in the child’s regularly scheduled IEP team meetings and follow through on the recommendations made by the child’s IEP team.

A parent will also need to demonstrate that they meet the child’s physical needs, including the everyday care of the child (feeding, grooming, and overall care) and caring for the child during illnesses (taking the child to the doctor and administering medication as required), or any exceptional medical events/circumstances.  

The 6 remaining factors will be covered in: Virginia Custody & Visitation Determinations – What the Courts Consider | Part 2

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Every state has different laws surrounding what decisions a caregiver can make without a formal arrangement. Contact WhitbeckBennett by calling 800-516-3964 or by emailing clientservices@wblaws.com, to connect with an experienced attorney in your area who can guide you through the process.