Custody and Visitation of Babies in Virginia

“I don’t want to send the baby to his father,” mothers often say to me. They can cite a bunch of reasons, from the fact that he hasn’t yet changed a single diaper (a single one!), that he isn’t vigilant about avoiding her allergens, he doesn’t stick to the schedule with respect to her medication, and that, really, he hasn’t spent hardly any time alone, one on one, with the child.
Whether she’s currently breastfeeding or not, mom is always worried—and more than a little reluctant to hand the baby over to her father. It’s understandable. If you’re reading this article today, you’re probably feeling similarly, too. Am I right?
There’s nothing more powerful than those protective momma bear instincts, and you can’t help that you feel that way. Everything in your being is telling you (yelling at you, probably!) not to let it happen. Insisting that the best care your baby will ever receive is at your hands. Cajoling you, pressuring you, pushing you—anything to prevent you from handing over that precious little baby that you’ve taken such diligent and exacting care of over the last weeks, months, and years.
“No court would expect me to hand the baby over!” mothers tell me. “He just…can’t do it!” They insist that this is the case when they talk to me, too, because, I’m sure, they really can’t imagine that any other outcome would be possible. How could a judge, they reason, remove a child from the care of a good, loving mother? Especially at her age! She’s so young—too young, in fact, for weekends or even a single night away from the comfort and stability of home.
“I’m just not comfortable,” they say, tearing up a little over the thought.
But, of course, these women are in my office and they are, presumably, asking me for legal advice. Even though the way the facts are applied are a little different in each case, the law is pretty much the same.

They, like you, are probably wondering… How does the court handle custody and visitation of babies in Virginia?

So, let’s get down to it. How does the court handle custody of babies?
“Baby” is, of course, a pretty vague term. I’ve heard it used to describe anything from an infant, a two year old, to even a four or five year old child—sometimes, even a fifteen or sixteen year old (especially if that child is the youngest of a number of siblings). Other times, I’ve even heard it (and maybe been guilty of myself) referring to a child, of any age, of the furry, four legged variety. To be clear, though: today, we aren’t talking about dogs or cats or rabbits or hamsters, even though your pets may mean the world to you. (I get it; my dogs are perfect, too, and they are also just like my children.)
Today, we’re talking about actual human babies. Small ones, too. The younger the better. I’m not sure at what point a child stops being a baby, exactly—but moms usually call their youngest children their babies at almost any age. Today, I’m mostly talking about children of diaper age. It seems like, after that point, different types of custody and visitation arrangements become more appropriate. Though no mom is over the moon at the thought of her child spending weekends (or even entire weeks) away from her at three or four years of age, there’s no denying that, as the child grows older and more mature, different things become possible that might not have worked when the child was younger.
There’s not a bright line rule about the age of a child and what’s appropriate; to determine what’s appropriate in terms of custody and visitation for children in Virginia, the court uses the “best interests of the child” standard. The “best interests of the child” standard is comprised of ten factors that a court uses, and that attorneys base their cases around, to determine whether a particular type of custody and visitation arrangement would be appropriate.
In case you haven’t seen them yet, the best interests of the child factors 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.

If you’re expecting custody to be an issue in your family, you’ll definitely want to take a few moments to read up on the best interests of the child factors. Their importance in a custody case really can’t be understated, and you’d do well to learn them, understand them, and begin thinking about your case in the context of the factors.
On the whole, decisions regarding custody are made with great deference to these factors. The court is going to look at them in detail, and the attorneys involved are going to make arguments that tend to show their clients advantageously in light of one or more of the factors.

So, what’s going to happen in a case like yours—where custody and visitation of a baby is at stake?

Well, it really all depends. In most custody cases, mom and dad reach an agreement and the courts don’t intervene at all. That’s not to say that it’s easy for a mom and a dad, especially a mom and a dad who are no longer romantically involved, to come to an agreement. It’s really hard. But, still, most of the time, mom and dad DO reach an agreement, and their agreement is fine, whatever it is. So long as the two of you agree, you can do whatever you want. You can wait for overnights until the child starts school, or you can start overnights right away. (Even if you’re breastfeeding, you could, theoretically at least, pump for the overnights.) Whatever you want, you can reach an agreement regarding.
For moms and dads who can’t reach an agreement, the situation is a little bit different. Will the court side with you and say that your baby is too young to have overnight visitation with dad? It’s possible. It’s probably most likely if you’re breastfeeding, but even then you may have to bring in experts to testify about the benefits and to discuss your schedule (and why it might defeat your efforts to have dad take the child overnight). As with most issues, there are some judges who are more inclined to support breastfeeding moms than others. (For more information about breastfeeding in custody cases, click here.)
Take care to read factor number 6 carefully, too. We sometimes call factor number 6 the “mom’s downfall” because it’s such a tricky thing for moms. The court wants to see that you are actively encouraging your child’s relationship with his or her other parent. There has been more and more litigation in recent years where dads argue that mom is unreasonably withholding the child—or worse—alienating the child and not allowing dad to develop a normal parental relationship with the child. These types of claims can, in extreme cases, result in an otherwise good parent LOSING custody.
You definitely want to be careful that you’re not restricting dad’s access to the child too much, or you might be setting yourself up for expensive, difficult, time consuming litigation.
You definitely want to be careful here. I’m not saying that you have to send the child with dad, but I’m also not saying that you don’t. If you’re afraid that your child’s father will be litigious (or if he has already filed something with the juvenile and domestic relations district court), you’re going to want to talk to an attorney and come up with a strategy to combat his allegations against you.
It may be that you’d like to negotiate something specific with respect to custody and visitation or attend mediation—and all of those things are certainly possibilities. But you should definitely talk to a Virginia attorney with experience handling custody cases so that you can be sure to get the advice that you need to make the best choices possible now.
If you can’t afford to hire an attorney, you still probably want to talk to one. Schedule a consultation; you don’t have to hire to ask questions and get information.
Can’t afford even that? Consider attending Custody Bootcamp for Moms, our intense, all day seminar designed to help teach moms what they need to know to represent themselves at the juvenile court level without hiring an attorney.
For more information or to schedule an appointment, give our office a call at (757) 425-5200. We look forward to talking to you!

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