Custody and Visitation in Virginia 

Can Custody and Visitation be Resolved Without Going to Court?

Yes; there are multiple ways to attempt to resolve custody and visitation without resorting to court. 

First, the parents can attempt to resolve these issues through mediation. In mediation, both parents meet with a mediator for as little as one, and sometimes multiple sessions. The mediator doesn’t make decisions for you, but works with both parents to see if they can reach an agreement.

The parents can attempt traditional negotiation. In traditional negotiation, each parent hires a Virginia custody lawyer. The lawyers communicate with one another, discuss options with their clients, and attempt to reach an agreement. Once the parties reach an agreement, the lawyers will write up the agreement. 

The parents can attempt to resolve their issues through collaborative law. In collaborative law, each parent hires a lawyer who is specially trained in the collaborative law process. Both lawyers and both parents sign a contract agreeing to attempt in good faith to resolve their issues outside of court, and that each parent must obtain a new lawyer if an agreement cannot be reached. Both the parents and the lawyers attend a series of meetings together, and if they reach an agreement, the lawyers reduce it to writing. 

Our Virginia custody lawyers have the experience and knowledge to help you resolve your custody and visitation issues without going to court.

What if the Issues Cannot be Resolved Outside of Court?

There are many times when parents cannot resolve their custody and visitation issues outside of court. For example, there may be domestic violence, one parent may have a substance abuse problem, the parents may have unrealistic expectations or make unreasonable demands, or a parent may be preventing the other parent from seeing the children. In these cases, either parent can ask a court to resolve the issues. If the parents are married but neither has filed a divorce action, or the parents are not married, a parent may file a petition with a Juvenile and Domestic Relations District Court. If the parents are married, and a divorce action has been filed, the issues will be heard in a Circuit Court.

What are the Types of Custody?

Physical Custody

Physical custody refers to where the child primarily resides. A parent has “primary” or “sole” physical custody when the child lives primarily with that parent while the other parent has visitation. The parents share joint physical custody when the child spends approximately the same amount of time with each parent. 

Legal Custody

Legal custody refers to the ability to make major decisions that affect the health and welfare of the child. These decisions include religion, education, and medical treatment. In most cases, parents are awarded joint legal custody, which means that both parents work together to make decisions regarding the children. Sole legal custody is when one parent has the exclusive right to control the child’s upbringing. Sole legal custody may be awarded when one parent has shown him or herself unable to resolve disputes and make decisions jointly with the other parent or where one parent is addicted to drugs or alcohol or displays poor judgment.

Split Custody

Split custody is where each parent has physical custody of one or more children.

What Factors Are Used to Determine Custody?

Virginia Code § 20-124.3 requires the judge to determine the best interests of the children by examining ten factors. These factors are:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. 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;
4. 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;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. 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;
7. 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;
8. 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;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

Although judges are required to apply the factors listed above, in practice, judges have their own standards and rules that they apply in making a custody or visitation determination. Our custody lawyers have handled countless custody and visitation cases in the courts of Charlottesville and surrounding areas. We apply our experience in these courts, and our knowledge of the law and understanding of our local judges and their preferences, to help our clients obtain the best possible results. 

Mental and Physical Health

If there is evidence a party may have mental or physical issues that would impact his/her ability to have custody, the court can order drug tests, alcohol tests, and even psychological testing.  In addition, a court can order a parenting evaluation of each parent that is conducted by a psychologist. The process of obtaining these remedies is very complicated, and a skilled Virginia custody lawyer has the skill and expertise necessary to navigate this complexity.

What is a Custody Evaluation?

The court has the power to order a custody evaluation prior to trial. The custody evaluation is made by an outside expert on whose assistance the court will rely in ordering a child custody arrangement that is in the best interests of the child.  Working with a custody evaluator is a very delicate and complicated process that a skilled Virginia custody lawyer can guide you through. 

Will a Guardian Ad Litem be Appointed?

In custody proceedings in the Juvenile and Domestic Relations District Court, the judge has the power to appoint a lawyer for a child. This lawyer is known as a guardian ad litem. The authority to make such appointments is granted by Section 16.1-266 of the Virginia Code. If the decision of the Juvenile Court is appealed to the circuit court, the judge there also has authority under Virginia Code § 16.1-296 to appoint a guardian ad litem.  

The guardian ad litem, at the conclusion of the case, will make a custody recommendation to the judge.  Accordingly, it is vitally important that you have a skilled Virginia custody lawyer to work with the guardian ad litem to ensure that you receive the best recommendation possible. 

Modification of Custody Orders in Virginia

As children grow, parties remarry, and priorities change, your custody order may need to be changed. Virginia Code § 20-108 requires the party petitioning the court for modification of a custody order to prove that (1) there has been a material change of circumstances since the entry of the last order, and (2) it is in the best interest of the children to modify custody.

The change of circumstances may be either positive or negative. For example, a parent’s remarriage or getting a new job could be a positive change of circumstances. On the other hand, a child performing poorly at school, developing behavioral problems, or a parent’s substance abuse problems could be a negative change of circumstances.

The change of circumstances must be something that happened after the date of the last custody order in your case – it cannot be based on something that happened before the entry of the last order.

If the judge believes that a change of circumstances has occurred, each parent must still present evidence to prove that the existing custody order should be modified. In making a determination, the judge will consider the evidence and apply the factors set forth in Virginia Code § 20-124.3 to make the custody determination.

Contact a Virginia Custody Lawyer

If you need help with a custody or visitation issue please call us at (434) 972-9600 or contact us using the form below.