Is Virginia’s Custody Law Revision a Big Win for Shared Custody?

Posted on Sep 26, 2018 by Katie Carter

No way around it, dividing up parenting time with your child’s father is a scary task. For most moms, the thought that you won’t be able to be with your child any time you like is overwhelming.

It’s especially overwhelming since July 1, since new legislation came down. I wrote a post awhile back updating everyone on all the changes to the law beginning on the 1st of July, but I’ve found that one of the things people want to talk about most are the changes to the law regarding custody.

What does the new shared custody law say?

I’ll let you read it. Virginia Code 20-124.2(B) provides that, “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.”
Honestly? Even though it wasn’t written down like this, I don’t think that this is really any dramatic departure from the way the law worked before July 1, 2018. I’ve found that, in general, judges do seem to consistently consider all the different forms of custody. (After all, isn’t that what a judge SHOULD do? It’s not exactly a “one size fits all” kind of analysis!) To me, it doesn’t feel like this new code provision is anything new.

What does the new shared custody law mean?

I’m not convinced it means all that much, to be honest. If you read the words, it doesn’t say that the judge is required to consider shared custody first, or to weigh more heavily in favor of a shared custody arrangement. It just says that the judge must consider all available options, and not prefer one over the other. That means that the judge can’t favor shared custody over sole custody either, but has to give weight and consideration to any option, while taking the child’s best interests into account.

What does “best interests of the child” mean?

As far as custody is concerned, the best interests of the child factors are pretty much like the ten commandments (and, conveniently, there are also ten of these). If you’re facing a custody case, it would definitely behoove you to be aware of them and, wherever possible, to build your case in deference to them. They are as follows:

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.

The court will expect you to build your case around them and reference them. The judge will consider them when making his decision, and the GAL will absolutely reference them when he or she makes his or her recommendation to the court as well.

Their importance really can’t be overstated, and they’ll certainly factor in as the judge weighs all the different custodial options available to him or her.

Is the new law a big win for shared custody?

I don’t think so. I don’t think it’s a big change at all. I think father’s rights groups would act like it’s a big change, or a big win, or somehow different, but my experience is that the more recent trends have been towards shared custody arrangements anyway, regardless of this new law. Shared custody isn’t a foregone conclusion, though – the facts (specifically, as it relates to the best interests of the child factors) matter, too. And the judge will consider other custody options, as appropriate, and make a determination based on the child’s best interests.

If shared custody is awarded, am I stuck?

No. There’s always the possibility for a modification if there has been a material change in circumstances – so, if shared custody doesn’t work, you can ask for something different later. And then, you’ll have more evidence and information about how to be successful in that petition.

For more information, or to schedule a consultation with one of our licensed and experienced Virginia custody attorneys, give our office a call at 757-425-5200.