When a child custody case is in front of a court in Virginia, there are many variables that are carefully considered. Although the parents may look at the situation as trying to ‘win’ custody, the court is much more concerned with what is in the child’s best interests, which takes priority over a parent’s “right” to custody.
For instance, if one parent doesn’t work full-time but the other one does, that could be given a lot of weight when determining what parent is in the best position to care for a child who is not yet school-aged. However, there are at least 10 different factors that the court must consider when determining what is ultimately in a child’s best interest.
What Factors Does the Court Consider?
Let’s take a brief overview of the various points the court must consider.
- The child’s age, including their mental and physical condition.
- Each parent’s age, along with their mental and physical condition.
- What each parent’s relationship with the child is like.
- Who can meet the child’s needs the best, including providing access to other family members?
- The role of each parent in the child’s life to date.
- How much can each parent support the child’s relationship with their other parental figure?
- How much has each parent demonstrated that they could maintain a close relationship to the child?
- What preference does the child have?
- Is there any history of sexual or physical abuse?
- Any other factors that the court decides should be considered.
Each of these points is vitally important for the child’s welfare. After all, if one parent works on a full-time basis but has demonstrated a close and loving relationship with the child, notwithstanding the limited amount of time they have historically spent together, the court isn’t going to penalize that parent by limiting the amount of time he or she has the child going forward.
How Does Sole Custody Work?
If the court decides that one parent should have sole physical custody, this means that they will be responsible for making all the parental choices for their child, including when the other parent can spend time with the child. This is an extremely rare situation that only happens in cases where there has been a long history of substance, physical abuse, or other extraordinary circumstances.
Sole legal custody means that only one parent has the authority to make major decisions affecting the child’s health, education, and general welfare. This is also rarely awarded by the courts in Virginia–and usually only after the parents first are given joint legal custody but one parent is completely uncooperative for an extended period of time and prevents the other from making decisions in the child’s best interests.
How Does Joint Custody Work?
A much more common scenario is for the court to award joint legal custody. An example of joint legal custody is that both parents would have to be in agreement before the child could receive vaccines, or see a therapist. Although one parent may have physical custody most of the time, the other parent must be given the right to participate in decisions regarding the child’s medical treatment, education, whether the child should have a passport, and other major decisions affecting the child’s general welfare. However, each parent has the right to make day-to-day decisions about how to raise the child in his/her household.
Joint or shared physical custody can mean that a child resides in both parents’ households an equal amount of time, or it can mean that one parent has less time during the school year but more time during the summer. Generally, any schedule where each parent has the child at least 35% of the days in a given year is considered a “shared” custody schedule. If one parent only has a child on alternating weekends, the other parent is considered to have “primary custody.”
What About Child Support?
Child support is decided based on factors such as the income of both parents, how often each parent has the child overnight, how many children the parents have together and with other partners, the cost of work-related childcare, and the cost of providing health insurance for the children. These factors determine the presumptive amount of child support owed by one parent to the other, but the court may also deviate from this number based on many different considerations, including a child’s enrollment in private school, the cost of travel to see the child if a parent lives far away, the child’s special needs, etc.
Can Other Family Members File for Custody?
According to Virginia law, any “persons with a legitimate interest” in the child’s welfare may file for either custody or visitation rights. This includes their grandparents, blood relatives, stepparents, former stepparents, etc. Therefore, if the person who filed for custody can prove that the child will suffer actual harm without scheduled time with that person, they may be given custodial rights varying from sole custody, shared custody, or visitation rights.
What About the Child’s Preference?
In Virginia, there is no set age that gives a child the legal right to choose their custodial parent. However, the court must consider the child’s wishes if the child is deemed to be of an appropriate age and intelligence to voice an opinion–which is usually around age 11 or 12. That said, most judges do not want a child to testify in the courtroom and be put in the middle of their parents’ disagreement, and the child’s stated preference does not control the court’s ultimate decision.
Should a Parent Propose a Parenting Plan?
A parenting plan can be a good way to ensure that both parents are on the same page. A parent may propose a parenting plan if they’d like, but it’s not a requirement of Virginia law. If no plan is proposed by either parent, the court will resolve all open issues.
Does the Woman Have a Better Chance at Gaining Custody?
It’s long been said that women have a better chance of getting custody, but is this actually true? In Virginia, the courts can use no inference or presumption to favor either parent. This means that the mother and father stand on equal footing at the onset of all custody cases.
When will Child Custody be Resolved?
If you are married and have children, Virginia law dictates that you must be separated for a full year before a divorce can be granted. This means that the custody case will be unresolved for an extended period of time unless the parents reach an agreement. There may be a temporary order issued if the parents are residing in separate households, but each court has different rules and requirements for temporary custody orders. However, getting a final order for custody will usually take at least one year. Therefore, it’s always in the entire family’s best interests for the parents to try to negotiate a custody agreement rather than ask a judge to decide what is best for their kids.
Getting Legal Help for a Child Custody Case
Even if you and your spouse or partner are splitting amicably, there may be many considerations regarding co-parenting in separate households that you haven’t contemplated, which can cause conflict in the future. Choosing an attorney you can count on may be one of the single most important things you can do to ensure the best possible outcome for your child. Contact the legal professionals at MDB Family Law to find out how we can help!