How Virginia Courts Decide Custody

Posted on Oct 4, 2017 by Katie Carter

Custody cases are tricky.  It’s not like divorce which, although difficult, is more or less a financial transaction where both parties walk away with some of the assets and some of the liabilities in the marriage.  It’s pretty much understood that you won’t walk away with it all, because your spouse legally deserves a portion of both the benefit and the burden of your accumulated marital wealth or debt.   In custody…it’s different.

There’s no way to actually split the baby, so, in the absence of being able to reach an agreement, many parents fight.  They fight for all sorts of reasons, but, usually, at the root of it is a deep seated fear about not being able to parent the way you always envisioned.  It’s scary, when your family is breaking up, to face the erosion of so many things that have always been important to you or represented what you wanted for your future.

Virginia Custody Agreements

Most of the time, in the best case scenarios, moms and dads are able to reach an agreement on custody.  It’s usually custody determined by agreement where we find a parent with primary physical custody, or where one parent is allowed to relocate.   Most of the time when we find unusual custody and visitation arrangements, its by agreement. There are just some things that courts won’t order – if you want it, you and your child’s father will have to agree to it.

When it comes to a custody agreement, there’s no limit to what you can and can’t agree on.  It’s totally up to you, and no court will come back and tell you that you can’t reach that agreement or you can’t parent that way. I had a prospective client awhile back that came in telling me she wanted something she called “nesting” to be established in her case.  She and her husband were getting a divorce, and she told me she wanted them to use the proceeds from the sale of their house to buy a townhouse that they’d share.  The child would live there, full time, and instead of the child going back and forth between their houses, the parents would rotate who lived with the child during their parenting time.  She told me she had done a lot of research, and that studies had shown (what studies, I don’t know—I’m not vouching for it, just giving an example) that this was less traumatic on children because they had the stability of a permanent home. It’s not a bad idea.  In fact, I can see that it makes sense.  That might be the perfect custody arrangement – but its not something that I’ve ever seen a court order.  Could it?  Maybe.  I’m not sure.  But I’ve never seen anything like that happen.  The moral of the story?  If you want something a little more on the unusual side, you’re going to have to negotiate it.

Modification of custody and visitation

That being said, though, custody by agreement only lasts as long as you both want it to last.  If there has been a material change in circumstances, either or both of you will have the opportunity to petition the court to modify custody and visitation.  At that point, you would have the opportunity to revisit and revise your custody agreement, or litigate to determine a new custody and visitation arrangement.

Why is custody modifiable?

Custody is always going to be modifiable based on a material change in circumstances because, from the court’s perspective, everything related to custody and visitation must be determined based on the best interests of the child standard.  The best interests of the child aren’t constant and unchanging; what’s in a child’s best interests is something that constantly evolves over time.  As you can imagine, what’s in the best interests of a 2 year old is different from what’s in the best interests of a ten year old which is different from what’s in the best interests of a sixteen year old.  It’s constantly changing as the child changes and it’s not about what’s fair to you or the child’s father, it’s about reaching an agreement (or having the judge enter an order) that takes the child’s needs into account.

Most other things aren’t modifiable.  Why?  Because, in a divorce, for example, it’s not about what’s in your best interests or your husband’s best interests.  It’s about what existed during the marriage, and how to divide it.  You’re only entitled to the benefit of what was earned during the marriage, so you don’t have the ability to go back later and ask for something more or something different from what you received.  After the divorce is entered, that ship has sailed.  The only things that you revisit later are things related to the children: custody, visitation, and child support.  (That is, unless your agreement includes a specific provision that allows you to modify or return for specific issues.)

What does “best interests of the child” mean?

In Virginia, as in most courts in the country, there are certain specific factors that establish the points that the court believes most accurately reflect a child’s best interest.  In Virginia, we have ten “best interests of the child” factors, and judges rely on them when making decisions related to custody and visitation.  They are:

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.

What happens if we can’t reach an agreement regarding custody?

Hopefully you will reach an agreement but, if you can’t, it can go in front of a judge.  Most people don’t really want their cases to go in front of a judge because, at that point, you don’t have a whole lot of control over how it all comes down. Judges are great (we need them big time), but they don’t often show a lot of creativity in their custody and visitation arrangements.  If you’re hoping for something super specific, you’ll definitely be better off trying to negotiate it on your own.   What happens when courts decide custody?  Well, things tend to take a pretty predictable pattern.  There are cases where things like supervised visitation get awarded, or where parents totally lose custody, but that’s usually based on certain specific facts.

Good, involved parents don’t generally lose custody—but they may find that the judge orders a custody and visitation arrangement that they aren’t at all thrilled about—like week on/week off custody. Mostly, what I see is that when parents fight over custody, they wind up with some kind of iteration of shared custody.  It’s not the end of the world, but many moms are shocked that they could ultimately end up with something other than primary physical custody – but, I can assure you, it does happen.  And, no, it does NOT mean that you’re a bad mom.  But the reality of the situation today is that more and more courts are tending towards promoting the involvement of both parents.

How do courts decide custody? 

Request a copy of our free report for more information on how courts reach decisions, and the factors that guide their decision making.   For more information about Virginia custody cases, or to request more information about our free custody book or our Custody Bootcamp for Moms custody seminar (LINK), give our office a call at (757) 425-5200.