You can’t get very far down the road in a custody and visitation case without coming up against “best interests of the child”. There’s a version of the best interests factors in almost every state (at least, as far as I’m aware), and these factors make up the basis of how custody and visitation cases are decided.
In Virginia, there are ten best interests of the child factors that judges, attorneys, guardians ad litem, custody evaluators and others use to prepare arguments and render verdicts. As far as their importance in custody and visitation cases are concerned, I often liken the best interests of the child factors to the ten commandments.
As you can see, if you’ve looked at them, they’re not so much a “Thou shalt not” kind of format, but, still, they’re super important.
But…what do they mean? How are the best interests of the child factors used in custody and visitation cases in Virginia?
The thing about custody is that, unlike financial stuff related to divorce, it’s entirely subjective. Even the phrasing – best interests of the child – is subjective. What’s good for one family might not be good for another. It’s not a universal set of standards that are applied in every case regardless of the particular circumstances. Each set of circumstances is tailored to each child, and a lot of evidence and a number of witnesses can go into a judicial determination of what, exactly, is in a particular child’s best interests.
People have general ideas about what’s in a child’s best interest, and sometimes they’re on point, and other times not so much. In some chances, combatting the misconceptions is one of the more challenging parts of what I do on a day to day basis, because a lot of these ideas come from a really intense or fear-driven place in a woman’s mind. Here, let’s talk examples.
Courts prefer that children remain with the mother.
I hear this all the time; either that there’s an implicit or explicit bias in favor of mom, just by virtue of her motherhood.
While I WISH that was the case (I mean, it would make custody litigation a lot easier!), it’s not true. Courts don’t favor mothers over fathers.
Imagine telling a woman that this isn’t the case, though, if she came in believing it. If she believes it, its probably out of a deep rooted sense of her own importance in her children’s lives, not to mention an overwhelming fear of any kind of alternative.
I get it. It’s scary. These are your kids we’re talking about! But it’s simply not true that there’s a preference for moms in the court system.
Dad makes more money. He will win custody.
Likewise, there’s no presumption that dad will win custody, especially not just because he earns more money. Because he earns more money, he’ll pay a greater share of the child support – but that doesn’t translate to a greater worthiness as a parent as far as custody and visitation is concerned!
My fear is that a mom who believes this will fall for another trap: settling for less in her divorce than she deserves in order to keep custody. This kind of defeatist thinking is a good reason (a great reason, in fact) why you should make sure to educate yourself about divorce and custody law in Virginia! Consider requesting a copy of our custody book and even our divorce book, if you’re facing a divorce as well as a custody case.
The reality is that the courts have to consider all forms of custody equally, which does not translate into a preference for either parent!
My child is over 12. He should get to choose!
Umm, no. in Virginia, there’s no age where a child can legally determine custody and visitation for himself (or herself). Well, I guess that’s not true – there is an age, and it’s 18.
Prior to 18, a child’s preferences can be a factor, but usually the child’s preference is presented through the GAL’s lens. The GAL (guardian ad litem) is an attorney appointed on the child’s behalf, and who makes a recommendation to the court about what should happen in custody and visitation.
The GAL may present the child’s preference (and I’ve heard it, even in cases where the child is pretty young), but it’ll also be filtered – and adjusted for the child’s age, maturity, understanding, etc. A child who says, ‘I want to live with dad because he’ll let me stay up til midnight and eat ice cream for dinner,’ would not be regarded as seriously as one who says, ‘I’d prefer to live with mom, because she helps me with my homework and makes sure I don’t miss any of my dance recitals’. A child who understands what he or she needs to thrive is one who will be regarded more seriously, but there’s really no guarantee about whether a child’s preference will be given much weight.
I have better job opportunities (and more support) if I move back home. It’s in my child’s best interests for me to earn more money and to have family support, so I’ll be able to move.
Eeeks. Though I know it may seem really unfair, relocation cases are actually super hard to win! The judge will likely place the importance of dad having ready access to the child above any economic opportunities or familial support you might have if you were to move with the children somewhere else.
It’s not a guarantee of course, and you may find that it’s easier to move BEFORE a court order is issued to avoid facing a reunification case, but it’s worth discussing with an attorney if your goal is going to be to move away from your child’s father – and your child’s father won’t agree to it.
My child’s father has never taken my child overnight. He won’t have overnights for a long time, until he can prove he can do it.
Maybe, maybe not. A lot of this has to do with the age of the child, and what’s developmentally appropriate. But just because dad hasn’t historically done certain things doesn’t mean that he won’t have the opportunity do to them in the future, even if it might happen sooner than you would prefer.
If he’s been a deadbeat dad, it may be a question of reunification therapy, but he may very well get overnights, especially if your children are older. Even in the case of a breastfeeding infant, I’ve seen overnights awarded – so don’t rest on your laurels here. If you think that there’s some real reason he shouldn’t have overnights, its worth it to spend your time and energy cultivating this argument, rather than just assuming that something won’t be done (or will be eased gradually into, over time).
It’s worth making sure you have as much information as possible, whether from reading our books, and free reports, or even attending our custody seminar. The best interests of the child factors are important to understand, and amount to much more than a simple, ‘Well, it’s clear that the child’s best interests mean that he will be with ME’. Be prepared to make concise, coherent, logical, well thought out arguments that are backed up by evidence and supported by witnesses.
Read the factors, ask questions if you have them, and feel free to call our office at 757-785-9761 to schedule a consultation if you’ve still got questions or need representation in your upcoming case.