Child custody and visitation presents some of the most difficult and emotionally challenging experiences a family may ever face. These cases are also some of the most nuanced and complex matters any attorney may handle. The value of an experienced family law attorney as your advocate cannot be overstated. If you are dealing with custody and visitation issues please review these pointers on how to protect your children during divorce.
Custody and visitation refers to determinations of which parent the children live with and the conditions for the children’s visitation with the non-custodial parent. The primary consideration in all custody and visitation decision-making is “the best interest of the children”.
A child custody and visitation order is never final and is always subject to revision or modification by a court to meet the best interests of the children. The law does not favor either the mother or father. Instead, the court is required to consider very specific factors and then to balance those factors when determining the children’s best interests. While grandparents and others may seek custody, there is a presumption in favor of the natural parents. What follows is a basic overview of the child custody and visitation decision-making process in Virginia courts.
If you are facing a volatile, hostile or contested custody issue then it is highly recommended that you obtain legal representation by an experienced family law attorney or child custody and visitation lawyer. This is especially important if the other parent is represented by an attorney.
Scroll Down to learn more about:
- Jurisdiction in a Virginia child custody and visitation case
- Decision-making in a Virginia child custody and visitation case: The “best interests of the child”
- Modification or revision of a Virginia child custody or visitation decree
- The value of a consultation with a family law attorney when dealing with Virginia child custody and visitation matters.
Jurisdiction in a Virginia child custody and visitation case
Generally, jurisdiction in a child custody and visitation case is in the court having authority in the district wherein the child primarily resides or in the court wherein the last custody and visitation order was entered. Matters of jurisdiction can become complicated when the parents and/or children have moved recently or after entry of a prior custody and visitation order. Both the Juvenile and Domestic Relations District Courts and the Circuit Courts have jurisdiction to hear child custody and visitation cases. Special rules apply as to the primacy of the courts when there are dual proceedings. The complexity of jurisdictional rules is only one of the many reasons you should seek advice and representation from an experienced family law attorney or child custody and visitation lawyer if you are facing court proceedings of this type.
Decision-making in a Virginia child custody and visitation case: The “best interests of the child”
The absolute controlling consideration in any custody and visitation case is the “best interests of the child”. This determination applies regardless of any agreement the parents may wish to enter regarding custody and visitation. In order to determine the “best interests of the child” the court must consider a number of factors. These factors are set forth at Virginia Code 20.124.3. No one factor carries any more weight than any other. The court is required to consider all the factors and then balance them when making a decision.
The factors are as follows:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The age and physical and mental condition of each parent;
- 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;
- 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;
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- 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;
- 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;
- 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;
- 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
- Such other factors as the court deems necessary and proper to the determination.
The judge is required to communicate to the parties the basis of the decision either orally or in writing. Except in cases of consent orders for custody and visitation, this communication must set forth the judge’s findings regarding the relevant factors.
The interplay of all of these factors can lead to various results. If you are facing a contested custody and visitation case then it is imperative that you seek advice and legal representation from an experienced family law attorney or child custody and visitation lawyer.
Modification or revision of a Virginia child custody or visitation decree
Revision and modification of a Virginia custody or visitation decree is generally addressed by Virginia Code § 20-108. What this code section basically states is that a court may modify a decree on its own initiative or when a petition is filed for modification be either party, as the circumstances of the parents and the benefit of the children may require.
A parent that wants to modify (change) an existing custody or visitation order must show some change in conditions that materially affects the “best interests of the child”. The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court.
The value of a consultation with a family law attorney when dealing with Virginia child custody and visitation matters.
This page provides only a very brief summary of all the considerations and factors involved in a custody and visitation case. There is a huge body of case law wherein the courts have interpreted the various statutes and considered other factors applicable to a child custody and visitation determination. If you are facing an initial custody and visitation determination or a petition for modification of a prior decree then it is a good idea to obtain a consultation with an experienced family law attorney who can guide you through the process and explain how all of the factors and case law may apply to your particular facts and circumstances.
Brian R. Moore has represented countless clients as a family law attorney and child custody and visitation lawyer in Virginia. He has handled cases involving all manner of issues ranging from parental fitness and psychological issues to children with special needs and complex medical histories. If you are facing a contested child custody and visitation case please contact the Moore Law Firm PLLC to arrange a consultation.