Child custody in Virginia

What the law tells the judge to look at

In the order the law lists them.

1. The child's age and physical and mental condition, including the child's changing developmental needs.Va. Code § 20-124.3(1)
2. Each parent's age and physical and mental condition.Va. Code § 20-124.3(2)
3. The relationship between each parent and the child, including positive involvement in the child's life and the ability to understand and meet the child's emotional, intellectual, and physical needs.Va. Code § 20-124.3(3)
4. The child's needs, including other important relationships, such as brothers and sisters, friends, and extended family.Va. Code § 20-124.3(4)
5. The role each parent has played, and will play, in raising and caring for the child.Va. Code § 20-124.3(5)
6. How much each parent supports the child's contact and relationship with the other parent, including whether a parent has unreasonably kept the child from the other parent.Va. Code § 20-124.3(6)
7. Each parent's willingness and proven ability to keep a close relationship with the child, and to cooperate and settle disagreements about the child.Va. Code § 20-124.3(7)
8. The child's reasonable preference, if the judge finds the child old, mature, and understanding enough to have one.Va. Code § 20-124.3(8)
9. Any history of family abuse, sexual abuse, or child abuse, or an act of violence, force, or threat that happened within the 10 years before the petition was filed. If the judge finds such a history or act, the judge may disregard factor 6.Va. Code § 20-124.3(9)
10. Any other factors the judge thinks are needed.Va. Code § 20-124.3(10)

Other things the judge considers

• The judge must tell the parties the reasons for the decision, orally or in writing, with findings on the factors (except for consent orders).Va. Code § 20-124.3
• The court must assure children frequent and continuing contact with both parents, when appropriate, and encourage parents to share in raising them.Va. Code § 20-124.2(B)
• The court may order a custody evaluation or a mental health or psychological evaluation and decide who pays.Va. Code §§ 20-124.2(D), 16.1-278.15(H)
• The court may order drug testing. A positive result for a substance that is legal under Virginia law (such as cannabis under Title 4.1 or a prescribed drug) is not a failed test.Va. Code § 16.1-278.15(I)

What the judge may not consider

Between the parents there is no presumption or inference in favor of either one (Va. Code § 20-124.2(B)). Legal possession or use of substances allowed under Title 4.1 (cannabis) or prescribed under Chapter 34 of Title 54.1 cannot by itself be the reason to restrict custody or visitation, unless other facts show it is not in the child's best interest (§§ 20-124.2(B), 16.1-278.15(I)).

Joint custody

No presumption. The judge must consider joint legal, joint physical, and sole custody, and there is no presumption in favor of any form of custody.

The child's wishes

The judge considers the child's reasonable preference if the judge finds the child has enough intelligence, understanding, age, and experience. The law does not set an age.

Domestic violence

There is no presumption against custody for an abusive parent. The judge must consider any history of family abuse, sexual abuse, or child abuse, and any act of violence, force, or threat within the 10 years before the petition. If such a history is found, the judge may disregard how much that parent supports the child's relationship with the other parent. A parent convicted of certain serious violent or sexual crimes against the child, a child in the home, or the other parent can be barred from filing custody petitions for up to 10 years.

Establishing paternity

How

Both parents can sign an Acknowledgment of Paternity (AOP) under oath, often at the hospital, or later in front of a notary with photo ID. It has the same effect as a court judgment. Either parent can cancel it within 60 days of signing, unless a court or agency order about the child was entered first in a case where that parent was a party. After that, it can be challenged only in court for fraud, duress, or a material mistake of fact. You can also file a petition in the Juvenile and Domestic Relations District Court where the child lives, or ask the Division of Child Support Enforcement (DCSE) for help, including DNA testing.

Form

Acknowledgement of Paternity (VS22)

Cancelling it

Either parent may rescind within 60 days of signing (unless an administrative or court order about the child was entered first).

Agency

Virginia Department of Social Services, Division of Child Support Enforcement (DCSE); Virginia Department of Health, Division of Vital Records
https://www.dss.virginia.gov/empowering-families/establish-paternity/paternity/
1-800-468-8894

Changing an order

The judge can change custody or visitation as the circumstances of the parents and the child's benefit require. The court self-help site says the court will consider a change only if there has been a material change of circumstances since the last order, and then orders the change if it is in the child's best interest. Intentionally keeping the child from the other parent without just cause may count as a material change. To change a J&DR order, file in the same J&DR court that made the last order.

Law: Va. Code § 20-108; selfhelp.vacourts.gov Custody, Visitation & Support

If the other parent does not follow the order

The court can enforce its custody and visitation orders and punish a willful failure to follow them as contempt of court. You can file a Motion for Show Cause Summons or Capias (DC-635). Intentionally withholding visitation without just cause may be a reason to change custody.

Law: Va. Code §§ 20-124.2(E), 20-108

Grandparent visitation

A grandparent (or step-grandparent) can ask for custody or visitation as a 'person with a legitimate interest'. The judge must give due regard to the parent-child relationship and can award custody or visitation to that person only on clear and convincing evidence that it is in the child's best interest. If the parent the grandparent is related to has died or is incapacitated, the grandparent may present evidence that this parent consented to visits; if that consent is proven, the judge then decides whether visits are in the child's best interest.

Custody by someone who is not a parent

Yes. A 'person with a legitimate interest' - such as a grandparent, step-grandparent, stepparent, former stepparent, blood relative, or family member - can be awarded custody or visitation on clear and convincing evidence that it is in the child's best interest. Some people are excluded, such as a person whose parental rights were terminated (with narrow exceptions).

Custody and visitation in the order

Yes. A full protective order can include temporary custody or visitation of a minor child, and can last up to 2 years (up to 4 years in some repeat cases). A preliminary protective order can be issued ex parte when there is immediate danger, with a full hearing within 15 days. There is no fee to file or serve.

Military parents

An order limiting a deploying parent's custody or visitation because of deployment must be temporary and say so. The deploying parent can ask to delegate visitation to a close family member. When the parent returns and asks to review the order, the hearing must be set within 30 days, and the other parent must show the old order is no longer in the child's best interest.

Law: Va. Code §§ 20-124.7 to 20-124.10, 20-108