How does Virginia decide custody and visitation?

Posted on May 6, 2024 by Katie Carter

Custody cases are some of the most dramatic, contentious, and stressful cases.  I’ve written on this before, and I’ll say it again: Virginia is NOT one of the states in this country that mandates 50/50 custody as a starting point.

In Virginia, we use the ‘best interests of the child’ factors, established by statute, as the starting point.  In fact, as far as custody cases go, I sort of consider the best interests of the child factors as the ten commandments; they really are THAT important.  Any family lawyer getting ready to go to trial over custody, whether in juvenile or circuit court, is brushing up on the evidence, witnesses, testimony, and arguments they can make to support why their client having physical (and maybe even sole legal) custody is in the child’s best interests.

But if it’s not automatically 50/50, what does the law say?  And why does it feel like so many cases are 50/50 anyway?

I agree: it does seem that, even though we don’t mandate 50/50, a lot of cases start at 50/50, or at least pretty close to it.  As far as physical custody is concerned, we have basically three types: primary (where the non custodial parent has 89 or fewer days in a calendar year), shared (where the non custodial parent has 90 or more days in a calendar year), and split physical custody (where there are different custodial arrangements that apply to different children, like in The Parent Trap).

=It does seem like we often start at 50/50, but the law very clearly states that there is not a presumption for shared, or even 50/50 custody.  (Though I do want to point out: shared custody just means that the non custodial parent has more than 90 days; it does not necessarily assume a 50/50 split, though it can be.)

Here’s what the law says, straight from Virginia Code 20-124.2:

In determining custody, the court shall give primary consideration to the best interests of the child. The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.

So, when I look at the statute, what do I see?  I see a list of criteria.

  1. Primary consideration is the best interests of the child factors

This one’s easy: we start with the best interests of the child factors.  We don’t assume that custody and visitation is one size fits all, which is why we use the factors to analyze each on a case-by-case basis.

  1. The court can look at joint legal, joint physical, or sole custody

These are the types of custody that the court can consider.  Legal custody refers to the right of parents to make three types of decisions on behalf of the kids: non-emergency medical care, religious upbringing, and education.  That can be awarded solely to one party or jointly between both – but because I see the point about the parties sharing in the responsibilities of rearing their children (see number 5), I think sole is less likely – but we usually see it awarded jointly.

Physical custody refers to where the children spend their time, and this can be awarded as primary, shared, or split.

Sole custody is also possible, whether sole legal, sole physical, or sole legal and physical custody.  (Don’t get your hopes up, though: this is unlikely.)

  1. There is no presumption in favor of any form of custody

You saw the list of all the types of custody above; the judge is supposed to give equal weight to all of them relative to the best interests of the child factors and then award custody and visitation accordingly – though some judges do seem to be confused about this.  (Yes – I have heard judges say, out loud, in court, that 50/50 is the presumption.)

  1. Frequent and continuing contact with both parents is important

The judge wants to see that you will allow your child’s father to be an involved coparent.  If we’re looking at the best interests of the child factors, this is like factor #6, too.  You WANT to be seen to support that relationship.

=In most cases where custody is contested (meaning that the parents are fighting), custody is awarded on a shared basis – though, again, not necessarily 50/50.  When I see parents LOSE custody, though, it’s often because one coparent was less likely than the other to foster the child’s relationship with the other parent.  This is important!  You do not want to be seen making disparaging comments or alienating your child from his or her other parent.

  1. Both parents are encouraged to share in the responsibilities of rearing their children

Again, we want to see both parents involved.  The court thinks that having both parties have access to the children is one of the most important things and all-around best potential outcomes.  (Though that is debatable, this is not a debate.)

  1. No presumption in favor of either mom or dad

Though many father’s rights groups will opine that moms have the edge in court, that is just not the case.  The statute here says that explicitly.  If anything, I am of the opinion that moms have less of an edge because the court doesn’t consider their role as a default parent prior to the separation/divorce/breakup, judges them harshly for decisions (like who and how often and how quickly they are dating), form snap judgments based on appearances (don’t come to court without looking like a model mother), and are quick to believe bad things – like that they are deliberately trying to alienate dads.  In short, the same double standards that apply in regular ol’ society apply in the courtroom, too.

  1. Parent/child relationship is most important

Compared to other relationships (see number 8), parent/child is the most important – and is given the most protection under the law.

  1. Anyone else – grandparents, aunt, uncle, family friend – with a ‘legitimate’ interest could potentially pettion the court, but clear and convincing evidence would need to be shown.

Grandparents – and other non parents – have considerably less rights and less ability to get custody and/or visitation of kids.  It’s possible, but not likely.  We still use the ‘actual harm,’ standard, though the court recently added in a specific exception for cases where one parent is either deceased or incapacitated.

So – that’s it!  That’s how custody and visitation is decided, and all of the factors that go into those decisions.  Do the courts get it right?  Mmmm, honestly, that’s really hard to say.  I do believe that judges, Guardians ad litem, custody evaluators, and, yes, regular old attorneys (like me!) are doing their best, for the most part.  It’s hard work, though.  It’s a lot of he said/she said, and we weren’t there, so we often just don’t have enough information to go on.

Abusers, narcissists, and others are good at what they do, too, so it can be difficult to compare the way they behave with the more trauma-based response of the person (sorry to say, but usually, the mom) who has been the subject of their lies, gaslighting, love bombing, and more.

It’s important to understand the system so you can make important decisions about how to operate within it.  For more information, to request a copy of our custody book for Virginia moms, or to register for an upcoming Virginia custody seminar, give us a call at 757-425-5200.