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How is Virginia child custody decided? Who will get custody of our child?

A judge will determine two types of custody – legal custody and physical custody. Legal custody means the care and control of the child and the ability to make decisions related to the child. Physical custody means the daily care of the child and where the child will live.

How custody of your child is determined depends on the best interest of the children. The judge is required to consider a list of factors, including:

  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 or sexual abuse;

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

What is joint custody?

Joint legal custody means both parents have responsibility and authority for the care and control of the child. Joint physical custody means both parents share significant, but maybe not necessarily equal, physical and custodial care of the child.

What is sole custody?

Sole legal custody means only one parent has responsibility and authority for the care and control of the child. Sole physical custody means that the child resides with one parent and the non-custodial parent may have specific visitation rights.

If both parents share custody does anyone pay child support?

Child support is determined based upon a specific formula taking into consideration both parents’ incomes, the number of children, any support paid by a parent for a child from another marriage, work-related childcare costs, health insurance costs for the children, and the number of days the non-custodial parent has with the children. The guideline child support is presumptively correct, but the court is given discretion to increase or decrease the amount of support depending on certain circumstances.

Can a parent refuse to allow visitation if child support is not paid?

No. A parent may not refuse to allow or cut back the other parent’s visitation with the children simply because the other parent has not paid his/her child support. Child support and child visitation are legally two separate matters and both parents have the right to meaningful relationships with their children.

In connection with support and visitation, if one parent refuses visitation to the other parent, the parent paying support cannot use that as a reason to withhold or stop paying child support.

When can my child decide which parent to live with?

A child’s preference to live with one parent is only one factor that the Court must consider when determining custody and visitation. The child’s age, maturity, and reasons for his or her preference will determine how much weight the court affords the child’s preference.

Do grandparents have custody and visitation rights?

Under Virginia law, “persons with a legitimate interest” may seek custody and visitation. This includes, but is not limited to, grandparents, stepparents, former stepparents, blood relatives, and family members.

What is a parenting plan, and do I need one?

A parenting plan is a document that helps parents who are not living together in setting forth their custody and visitation schedule, the decision-making rights and responsibilities of each parent, how disputes will be resolved, and how the expenses of the child will be paid. In Virginia, you are not required to propose or have a parenting plan. If you and the other parent cannot agree on issues related to custody and visitation, the judge will resolve these issues.

If my separation agreement includes custody/support can it be included in the divorce decree?

Yes. Parents may enter into a written separation agreement or property settlement agreement that addresses custody, visitation, child support, spousal support, and distribution of marital property and debts. Your agreement can be incorporated into the terms of the final decree of divorce, unless the court determines that the agreement is unconscionable.

What can I expect from temporary orders?

A divorce, like any other lawsuit, can take some time to get through the court system fully and completely resolve all issues between the parties. While the case is pending, the court can make pendente lite (temporary) decisions that are effective until further order of the court. Temporary orders can address custody and visitation, child support, spousal support, payment of debts, costs, attorney’s fees, and exclusive use of the marital residence, among other issues.

When will child custody be decided?

Custody of the parties’ children will be decided by the court based on what is in the best interests of the children. If the parties agree to a custody arrangement, the court must still make its own determination as to whether the arrangement is appropriate and in the best interests of the children.

If there is no agreement on custody, the court will make a determination after a formal court hearing in which both sides will be allowed to present testimony and evidence.

When can I modify custody?

To modify custody, there must be a material change of circumstances and the change must be in the best interests of the children. There must be new facts that have arisen since entry of the prior order.

What if we cannot agree on a custody arrangement?

If the parties cannot agree on a custody arrangement for their children, the parties may be ordered to attend mediation or may choose to go to mediation. If the parties cannot agree and/or mediation is unsuccessful, the court will make a custody order after a formal court hearing in which both sides will be allowed to present testimony and evidence.

What is an ex parte order?

An ex parte order refers to a court order that is entered at the request of one of the parties without hearing from the other party. Generally, ex parte orders are issued in extreme situations and are temporary until the court can hold a hearing to give both sides the opportunity to address the court.

How can I increase my chances at getting a larger custody agreement?

Under Virginia law, there is no presumption or inference of law in favor of either parent. There are certainly things you can do to improve your chances of convincing the court to give you more time with your children. Conversely, there are certainly things you can do that will hurt your custody battle.

You should consult with an attorney concerning the specifics of your situation. You should be aware that everything you say and do in front of the children or to the other parent could (and will likely) make its way back to the judge.

What is visitation?

Visitation refers to the time that the non-custodial parent, or parent without primary physical residence, will have with the children. Visitation plans will include routine visitation, holidays, and summers. The more specific the plan is, the less chance there is for miscommunication and confusion.

Can a judge order supervised visitation or no visitation?

Virginia favors custody and visitation arrangements that keep both parents involved in the lives of their children. However, supervised visitation may be ordered if the non-custodial parent has acted inappropriately with the child or placed the child in a dangerous situation. One specific situation where no visitation may be awarded is where a parent or a person residing with that parent has been convicted of a felony sexual offense involving a child victim. You should consult with an attorney to discuss the specific facts in your case.

Do courts favor the mother over the father?

No. Virginia child custody law specifically provides that there shall be no presumption or inference of law in favor of either parent.

What should I know before a custody trial?

You should consult with an attorney concerning the specifics of your case.

Can I collect my own evidence to use if my custody case goes to court?

You should consult with an attorney concerning obtaining the necessary, relevant evidence in your case.

Do I need to use a Guardian ad Litem/Custody Evaluator?

In Virginia, in a proceeding where custody and visitation of a child is contested, the court may appoint a guardian ad litem. A guardian ad litem is an attorney appointed to represent the interests of the child.

Will my child need to appear in court?

Generally, in non-contested cases, where the parties have settled and agreed to all of the issues related to custody and visitation, there will be no need for the child to appear in court.

However, if the case is contested on issues concerning the child, there are situations where it may be necessary for your child to testify in court. You should consult with an attorney to discuss the specific facts of your case.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act (PKPA) is federal law the individual states utilize to determine which state can assert jurisdiction in child custody matters. The PKPA’s purpose is to ensure that custody determinations are made in the appropriate state.

What if my spouse tries to move the kids out of state?

If your divorce has not been filed and your spouse tries to move the children to another state, you should consult with an attorney about filing for divorce immediately to make sure that the court in Virginia will have jurisdiction over the children.

Most states have a residency requirement before a parent can file for divorce. The party must be a resident of the state for a specified period of time before they can file for divorce. In Virginia, a parent would have to be a resident and domiciliary of Virginia for more than six months immediately before filing for divorce.

Can a parent change the child’s last name without the other parent’s permission?

No. If parents do not agree on changing a child’s last name, then a hearing would be held. The name change will be granted unless it is for a fraudulent purpose, will result in infringement of another’s rights, or it is not in the child’s best interests.

If I have custody, will I receive child support?

If you have physical custody of your child, the non-custodial parent will most likely be ordered to pay child support. The court will determine a guideline child support amount that is presumed to be correct in a very formulaic manner, and will make a determination whether the amount is just and appropriate based upon all of the relevant factors including: actual monetary support for other family members or former family members; arrangements regarding custody of the children, including the cost of visitation travel; imputed income to a party who is voluntarily unemployed or voluntarily under-employed; any childcare costs incurred on behalf of the child due to the attendance of a custodial parent in an education or vocations program; debts of either party arising during the marriage for the benefit of the child; direct payments ordered by the court for maintaining life insurance coverage; extraordinary capital gains; any special needs of a child resulting from any physical, emotional, or medical conditions; independent financial resources of the children; standard of living for the child established during the marriage; earning capacity, obligations, financial resources, and special needs of each parent; provisions made with regard to the marital property in divorce; tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children; a written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and such other factors as are necessary to consider the equities for the parents and children.

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