Virginia Custody & Visitation Determinations – What the Court Considers | Part 2

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 the 6 remaining 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):

   5. The age and physical and mental condition of each parent

This factor examines each parents’ age and takes into consideration if either parent has a physical or mental condition that would interfere with their ability to care for the child. For instance, if one parent has severe or untreated mental health issues that create a significant potential obstacle to that parent being able to provide adequate care for and/or attention to the child while the child is in their care, this should be considered when determining the ultimate custodial/visitation schedule between the parents.

The same analysis should be applied when a parent has a physical disability or other physical limitation that affects his or her ability to attend to the child’s needs when in his or her care; for example, let’s say the father in a custody dispute was in a major car accident that left him partially paralyzed and fully reliant on a wheelchair or walker when going about his day-to-day life, this should be taken into consideration when determining what, and under what conditions, the father’s custodial schedule with his 3-year-old son should be – will the disabled father be able to follow his active toddler around from room-to-room during his custodial time and adequately ensure the child’s safety by keeping eyes on his son during playtime? If not, what other mechanisms or safeguards should be put in place to ensure the child’s safety during the father’s custodial time? Depending on the circumstances, sometimes this can be addressed by having another responsible adult on-site during the father’s custodial time; using the same hypothetical as set forth above, it is likely that if the father has a physical disability that so limits his ability to move around his home in a smooth and expedient fashion, he likely uses the services of a regular in-home caregiver or resides with another family member (parents, adult sibling, etc.). However, under the same facts, there may be less of a safety concern for the child when in the father’s care if that child is not a 3-year-old toddler but is instead a 16-year-old with full mental and physical faculties and is, therefore, less reliant on a parent’s moment-to-moment supervision and care to attend to his/her needs when in the father’s custody.

Of course, the same analysis also applies to the parents’ respective ages, especially when looking at parents who are either young teens or of advanced age. While these cases are seen less often, custody/visitation disputes involving teen parents (accidental pregnancies involving high school sweethearts) or parents above federal retirement age (late-in-life adoptions, for example) are not unheard of. In those situations, the parents’ respective ages and corresponding abilities to attend to their children’s day-to-day needs should likewise be taken into account.  

   6. The role that each parent has played and will play in the future, in the upbringing and care of the child

This is an important factor for the courts to consider, and examines the involvement of each parent in the care and upbringing of the child through the time of the custody/visitation proceeding, and what that involvement will look like moving forward. Relevant information taken into account concerning this factor include which parent is/has been the child’s primary caregiver through present (i.e., which parent more often handles feeding the child/taking care of mealtimes, bathing/grooming the child or otherwise ensuring the child is exercising proper and regular hygiene, buying the child’s clothing as needed and laundering the child’s clothing on an ongoing basis, taking the child to medical or other appointments, ensuring that the child’s necessary prescription medications are filled and on hand at all times, and the like) and which parent bears more of the financial burden for the child’s ongoing care needs. This factor will also depend on the child’s age and gender, as a female child about to go through puberty may need more time with/attention from her mother during this stage of development than would a male child of the same age. This factor also addresses how each parent plans to be involved in the child’s care and upbringing moving forward, especially in light of each parent’s proposed/desired custodial schedule – for instance, if one parent is planning to relocate to a state across the country and will reasonably only be able to exercise his/her visitation with the child during school breaks and summer visitation, this should be taken into account under this factor.

    7. The propensity of each parent to 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

The best interests of a child are, more often than not, served by the child’s parents having a healthy and supportive co-parenting relationship, including each parent respecting the “house rules” in the other’s home, speaking respectfully of the other parent in front of the child, and taking care to foster and support the other parent’s relationship with the child. The concept of parental alienation

and/or denigration of one parent by the other is taken very seriously by the courts in Virginia. If one parent has been consistently undermining the other in front of or directly to the child whose custody/visitation is at issue, the court will very likely take this into account when determining the custody/visitation schedule for that child. If the alienation of one parent by the other is significant enough, the court may order what’s called “reunification therapy” between the alienated parent and child, which is a form of family therapy but narrowly focused on repairing the alienated parent’s relationship with the child so they can commence the court-ordered visitation schedule with as little upheaval and emotional strain on the child as possible. It is not uncommon for a court ordering such reunification therapy to require this therapy be paid for by the parent who engaged in the alienation against the other.

A parent should encourage their child to have a healthy and robust relationship with the other parent, especially when the child is in their care; for example, encouraging the child to contact the father regularly during the mother’s custodial time, including keeping the father apprised of exciting developments in the child’s life experienced while in the mother’s custody (if the child got a good grade on a test they were convinced they would fail, getting asked to prom, making the school basketball team, etc.). A judge will also consider, under this factor, whether a parent has unreasonably denied the other parent access to or visitation with the child, especially if doing so violated a standing court order, unless there is a history or evidence of ongoing family abuse (as described in factor 9 below) of the child by the other parent. An example of such “unreasonable denial” would be if a parent at the last minute canceled the other parent’s scheduled visitation time with the child as a retaliatory measure or to otherwise “get back at” the other parent for getting remarried, not being able to make it to the child’s last hockey game due to a work conflict, or some other similarly petty reason. Unfortunately, such situations are not all that uncommon, and more parents tend to engage in this type of punitive behavior than would be expected.

   8. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and theability of each parent to cooperate in and resolve disputes regarding matters affecting the child

This factor explores the relationship between the parent and child and what the parent actively does to ensure they have a healthy and supportive relationship with the child. A parent should be able to present evidence to the court showing the efforts he or she takes on a regular and ongoing basis to foster a healthy parental relationship with the child and the involvement he or she has in the child’s life to date. For instance, if the parent takes an active and open interest in the child’s hobbies, extracurricular activities, and academics; if the parent makes an effort to know who the child’s friends are; if the parent takes steps to really “get to know” their child at each stage of childhood development. 

The second part of this factor examines how the parents co–parent between themselves. Can the parents work together in a healthy and cooperative fashion to address their differences of opinion when it comes to the child’s education, medical care, and/or religion, to name a few, or are they so unwilling/unable to do so that any such difference in opinion results in discussions to prioritize their child’s overall well-being? It is important to show the court that he or she has been willing and open to cooperating with the other when attempting to address and resolve such issues, even in situations where the other parent has refused to engage in such cooperation. Courts do not expect one parent to be able to force the other to engage in such healthy co-parenting discussions, but they do expect each parent to try, even if the other parent refuses to do so. A parent should endeavor to show the judge that he/she has been doing everything reasonably possible to work with the other parent in a cooperative and productive fashion for the child’s benefit, and if he/she isn’t successful in doing so due to the other parent’s unreasonable refusal to cooperate in resolving disputes involving the child, he/she should still be able to show the court that these efforts were still made on his/her end.

   9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6

This factor examines any history of abuse that may have occurred in the household in the past. This factor is very important for a judge to consider in a custody/visitation determination and can be the deciding factor one way or the other as the implications of any such history of abuse can put the child’s safety at immediate and significant risk. When looking at the best interests of a child, that child’s physical safety and well-being are foundational and should be considered accordingly. It is important to note that any such history of family abuse or violence can be considered under this factor if it occurred within the 10-year period leading up to the filing of the custody/visitation petition in your pending custody case. Typically, if a matter is a modification of an existing custody/visitation order, the court will only consider evidence from the date of the last order through the current/pending custody/visitation modification proceeding. However, this factor permits evidence being introduced that pre-dates that last custody order (so long as it occurs within 10 years of the petition), as it is of the utmost importance for the judge to consider whether the child is at risk of experiencing physical abuse when in one parent’s care or custody, and will take such instances of abuse very seriously in making his/her ruling on any custody/visitation schedule.

If there is a history of abuse found in a custody/visitation proceeding, the court may disregard the other parent’s denial of the abusing parent’s custodial time or refusal of access to the child; in fact, courts will oftentimes expect the non-abusive parent to intervene, if he/she knew that the child was being physically abused when in the other’s care, and to take immediate action to protect the child from such abuse, albeit by proper legal channels (i.e., seeking/obtaining a protective order for the child from the abusing parent, filing an emergency motion with the court to temporarily halt the abusing parent’s visitation with the child, etc.).

   10. Such other factors as the court deems necessary and proper to the determination

This factor serves as a “catch- all” and is intended to encompass any other relevant details/information that should properly be taken into consideration when the court makes its ultimate custody/visitation determination in a particular case, and which may not have fallen squarely under any of the 9 preceding factors in this Code section. 

These ten factors are used by every judge in every custody and visitation matter in the Commonwealth of Virginia. While these factors may be difficult to comprehend without any legal training, seeking help from a lawyer can help you understand the factors and prepare for your custody and visitation matter. 

To view the 4 other factors considered, go to Virginia Custody & Visitation Determination – What the Court Considers Part 1.

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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.