What To Expect: Virginia Custody and Visitation

Posted on Sep 1, 2017 by Katie Carter

Custody and visitation cases can run the gamut.  Of course, that’s because the facts involved in each case can differ dramatically from one to the next, and that can have a lot to do with how the judge rules.  A lot of factors can influence Virginia custody and visitation.  Obviously, what is appropriate for an infant is different for an elementary school aged child, which is different from what is appropriate for a kid in his junior year of high school.  The physical and mental condition of the parents (with emphasis on their ability to care for a child effectively) is also relevant.  If a parent is gone for long periods, like a merchant marine or a truck driver, or is in the military and is deployable, that has a lot to do with what might be appropriate, too.  I won’t belabor the point here, but suffice it to say that there are a LOT of things that can be different from one case to another, and the specific situations involved have a lot to do with custody and visitation.  As a result, it’s pretty hard to know exactly what to expect.

We’ve already got a couple articles depending on the ages of your children, and you might want to take a look at those.  If you’re breastfeeding custody is going to be different than if your kids are school aged (or even high schoolers.  But, of course, age alone isn’t the only determining factor when a judge considers custody.

So, what should you expect when it comes to Virginia custody and visitation?

1. The judge will be heavily influenced by the best interests of the child factors from Virginia code §20-124.3.

You should learn them and understand them, and be prepared to base your arguments around them.

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 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

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

2. A Guardian ad litem will be appointed.In most cases, a Guardian ad litem (GAL) is appointed.

A GAL is appointed to represent the interests of the child to the court and, ultimately, to make a recommendation.  In most courts, GALs are very highly regarded, and their recommendations carry a lot of weight with the judge.You would do well to remember that the GAL is not your friend.  He or she is not there to discuss, in detail, the flaws you’ve found in your child’s father.  In fact, if you allow your discussions to be centered on his various shortcomings, you’ll probably do irreparable damage to your case.  You’ll be better off to focus on your positive contributions to the child’s life, to ask the GAL questions so that you can get his or her input on particular situations and govern yourself accordingly, and allow him or her to learn about your child’s father through his or her interactions with him.Whether you like the GAL or not, you should accept that he or she is there to stay.  It is virtually impossible to get a GAL kicked off a case, and you risk too much to try in most cases.  You may have to pay half of the GAL’s fee, too.  After all, your child can’t pay!

3. Judges like shared custody.

Shared custody is not a guarantee or anything and, like I’ve already mentioned, the specific facts involved in each case have a lot to do with what the guardian ad litem recommends and what the judge ultimately orders.  Still, in more and more cases, I’m seeing shared custody trending.

That doesn’t necessarily mean that he will have 50% of the time with the kids.  In fact, shared custody doesn’t mean that at all—it just means that the non custodial parent (the parent who has the child less) has 90 or fewer days with the child in a calendar year.  Sometimes it’s 50/50 time, but not always—and not automatically.I have seen an upsurge in week on/week off custody arrangements, but it’s hard to know how a judge will come down in a particular case.  There’s a good chance, though, that if you live nearby and you’ve both been active in the child’s life up until this point that shared custody might be awarded.


4. You probably can’t relocate.  (And even if you could, would you want to?)

Relocation cases are incredibly hard.   In fact, in my experience, judges very rarely allow a parent to relocate away from a child’s other parent.  In the judge’s view, it’s in the child’s best interests to have two active, involved parents—rather than just one.  Moving the child away may have other benefits – like job opportunities for the parents or time to spend with extended family – but it’s rare that a court would find that those benefits outweigh the disadvantage of the child not being near his father.

Besides, when parents live far away from each other, visitation is even more difficult.  That’s when we see a child who goes to dad’s house and stays for the entire summer—or an entire Christmas vacation—or something equally inconvenient.  When it’s not possible to share weekends regularly, longer periods of visitation become necessary.  That’s inconvenient for you, but it’s also often really hard on the child.  It’s hard to know exactly what will happen in a custody and visitation case, but these are four things I know to be pretty darn true.  Though your case can differ, or could be the exception to the rule, more often things reflect certain, specific trends.  For more information, or to talk to a custody attorney one on one about your case in a confidential consultation, give our office a call at (757) 425-5200.