Most states, including Virginia, make decisions regarding custody and visitation based on the “best interests of the child.” The court looks at the factors and, ultimately, has to make a determination based on those factors that serves the best interests of the child (or children) in question. In Virginia, we have 10 factors that take into consideration the best interests of the child.
I will list each of the ten factors for you here, and also include a brief description of the factor and what it means for Virginia moms facing custody cases.
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs.
When the court analyzes a case based on this factor, it looks specifically at the child in question and considers her needs, both today and as she develops. If you’re presenting evidence in a custody case, you’ll want to offer evidence to address these issues.
Obviously, if your child has special needs, this factor is particularly important. You’ll want to discuss your child’s current condition, the care she needs, and the kind of care you expect her to continue to need as time goes on.
If your child is healthy and doesn’t have any special needs, this factor will be relatively easy to address. You should brush up on your parenting reference books so that you’re prepared to articulate what you believe to be your child’s current and future foreseeable developmental needs, and how you are prepared to meet them. You will probably also want to present some evidence regarding what kind of custody and visitation arrangement will help meet those needs, keeping in mind that what works today may need to be expanded or narrowed as the child ages. For a breastfeeding baby, for example, overnights or weekend visits with dad may not be possible, but you’ll certainly want to acknowledge to the court that you understand and expect that visitation with the child’s father will increase as the child gets older and these types of visits become more appropriate.
2. The age and physical and mental condition of each parent.
Most of the time, the age and physical condition of the parents aren’t real issues as long as both parents are capable of providing care for the child. One parent won’t receive preferential treatment, for example, because he is younger or more physically fit.
Mental condition, however, is sometimes an issue. If you’re seeing a therapist, you should be aware that any records kept by your therapist or any testimony your therapist offers if he or she is subpoenaed to court is admissible, because the court is required to take into account the mental condition of both parents. Of course, this isn’t a reason NOT to see a therapist if you need one. If you’re going through a divorce or custody case, most judges understand and appreciate that you’re willing to get help if you need it.
If the mental health of one or both parents it at issue, the court will often order a psychological evaluation. Expert witnesses can also testify about the mental health issues affecting the parents, but this is not testimony you’ll want to offer yourself. If you’re concerned about the mental health of your child’s father, you should suggest an evaluation. If you suggest to the judge that your child’s father is crazy, you risk looking crazy yourself (or just plain vindictive).
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.
This factor looks at the positive and unique qualities of your relationship with each of your children, but you’ll want to be careful so that you portray your relationship as an appropriate parent/child relationship. The court doesn’t want to see that you’ve developed a friendly peer-type relationship with your child, or that you’ve placed your child in a role that requires her to give comfort and support to you. When the court analyzes this factor, the court is looking to see that your relationship is healthy, positive, and appropriate.
Again, you should be able to articulate what you believe to be the current and future needs of your child, and how you plan to address those needs as the child’s custodian.
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.
This factor looks at the child’s relationships with other important people in her life. You’ll want to provide the court with evidence showing that, in your custody, the child will be able to maintain her relationships with neighborhood and school friends, siblings, grandparents, aunts, uncles, cousins, and others who have played an important role in the child’s life.
We see this as an issue most often in cases where one parent or the other wants to relocate. You’ll have a very hard time demonstrating to the court that sum of these other relationships are sufficiently important to outweigh the importance of your child’s relationship with the other parent, but this is one factor that at least allows you to introduce some of this evidence.
You may choose to have your parents or siblings testify in court about your extended family activities, family traditions, and their unique relationships with your child.
5. The role that each parent has played and will play in the future, in the upbringing and care of the child.
This factor often allows moms to shine, because it gives some credit to the person who, up until this point, has been the primary caregiver of the children. It is important to remember, though, that this factor is only one factor out of ten, and it is not the be-all, end-all where child custody is concerned. Still, your role up until this point is relevant here, so you should be prepared to make the most of it. Organize your testimony so that you can present everything you’ve done quickly and efficiently (because the court won’t give you oodles of time to discuss every little detail) without sacrificing its importance.
If you’re working with an attorney, your attorney will probably ask you to write a narrative outlining what you’ve done and continue to do for your child on a day to day basis, as well as what your child’s father has done. Be specific and factual, and don’t engage in a lengthy diatribe about what your child’s father hasn’t done or hasn’t done properly. If a guardian ad litem or a custody evaluator has been appointed in your case, you won’t want to come across as bitter or nasty. Not only that, but the judge won’t want to hear it, either, so it’s best to get in the practice of giving brief, accurate accounts of what has happened, without talking at length about your child’s father’s weaknesses. Let your strengths shine instead.
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 access to or visitation with the child.
It’s safe to say that this is the most important factor of the ten, and it’s one that is frequently a mom’s downfall.
When your relationship with your child’s father changes and you are suddenly expected to co-parent, it’s a major transition. Suddenly, dad expects to have visitation, and there didn’t used to be any such distinction. It was family time, not his time or your time.
For many moms, when dads ask for time (or just want extra time), it’s tempting to say no. When you’ve always had control over the schedule and the child-rearing responsibilities, it’s hard to relax. To dad, though, when you say no, you’re unreasonably denying visitation—and, to the court, this looks like you’ve denied him access to his child, so you’re not fostering the development of this relationship. Most dads learn that this is a weak spot for moms pretty quickly, and start making requests for contact all over the place.
It’s a trap, but there’s no reason you should fall into it! If your child’s father puts you on the spot, you should take some time to think about it or talk to your attorney about how to answer. If your child’s father asks for something you’re not comfortable with, it’s always okay to say no and suggest a different alternative. It’s also smart to keep a written record (like through email) so that you can prove that you didn’t fail to offer reasonable time for your child’s father to work on developing this important relationship.
This factor also includes how information is shared between the two of you. You should be sure to share any information regarding the child’s school, healthcare, or extracurricular activities, even if your child’s father wasn’t interested before.
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.
Judges don’t have much patience for parents who aren’t able to cooperate for the sake of their children so, if it is possible in your case, you should cooperate and resolve disputes together as much as possible. Communicate by email so that you can document your efforts to cooperate with your child’s father. Stay calm and reasonable in all communications, and, if he baits you, only respond to the portions that deal with co-parenting your child. Remember that these records can be useful in court, but only if you don’t stoop to his level in the meantime. Stay calm, cool, and collected, and focus on what is in the best interests of your 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.
This factor makes a lot of parents panic. While it is possible that the judge will take the child’s point of view into account, in most cases judges don’t want to hear from the child. If you have a guardian ad litem appointed in your case, the judge probably only wants to hear what the guardian ad litem has to say. It is up to the guardian ad litem to let the court know about the child’s wishes, even if they are contrary to what the guardian ad litem believes is in the best interests of the child.
If you choose to call your child as a witness (and you should definitely talk to your attorney about whether this is a good strategy), the judge may speak to the child privately in chambers if both parents agree. Then, the court makes a decision as to whether the child is of reasonable, intelligence, understanding, and age to give reliable input into the decision. Usually, the older the child is, the more weight the court gives to her preference. If your child says, for example, that she’d like to live with dad because there are no rules, it’s unlikely that the court would find that she has reasonable understanding or maturity to make that kind of decision.
Technically, though, until the child is 18, it is up to the court to determine what is in the child’s best interests. Different judges have different opinions regarding whether and under what circumstances they’ll allow children to give input, and how much weight they can give to the input.
9. Any history of family abuse. Family abuse is defined as any act involving violence, force, or threat including, but not limited to, any forceful detention, which results in bodily injury or places one in reasonable apprehension of bodily injury and which is committed by a person against such person’s family or household member. If the court finds such a history, the court may disregard factor #6.
If you plan to allege that there has been abuse, you should speak with an attorney immediately. This cases are complicated and difficult, and you should be sure you’re making the right decisions at all points in your case to avoid jeopardizing your case and you child’s future.
10. Such other factors as the court deems necessary and proper to the determination.
This factor is a catch-all. If you feel like there is some factor that is important for the court to consider in making a determination regarding custody, this is the place where you can raise any special facts or circumstances that may be relevant.
The court will review the case based on all ten factors, but doesn’t have to specifically state how much weight was given to each factor. Because of the number and the breadth of the factors, the court has a lot of leeway in making child custody determinations. Still, these factors are the basis of every decision, and their importance cannot be understated. If you’re facing a child custody case in Virginia, you should be familiar with these factors and, from the very beginning, should be formulating your arguments based on each of these factors. Keep them in the back of your mind throughout the process and make sure that your decisions are carefully weighed. For more information on custody cases or to get help from an experienced Virginia custody attorney, give our office a call at (757) 425-5200.