Child Custody in Virginia

Disputes regarding child custody must be decided by the court after a full hearing, which can be both expensive and time-consuming. The costs of a custody dispute can include the testimonies and evaluations of child psychiatrists and other witnesses, home visitations by court-employed social workers, the services of a court-appointed attorney known as a Guardian Ad Litem (GAL) for the child, and other similar charges. The court hears a wide range of evidence about the parents’ abilities and the child’s needs before deciding what is in the “best interests of the child”. Child custody jurisdiction can be an important facet of some custody cases. The Virginia Child Custody Statute is the standard used in determining child custody.

Real Criteria for Deciding a Custody Case
Child custody is decided based on “the best interests of the child” in Virginia. The real sub-criteria of this decision seem to be essentially these:

  1. Where the children are now.
    Courts simply do not like to take the responsibility for moving them. The “inertia factor” is the strongest of all, as it furnishes an excuse for a disposition that, should it turn out badly, is less likely to be blamed on the judge.
  2. Who has had the child for the longest recent period.
    A more sophisticated refinement of the “inertia factor”. The more perceptive judges will discount very-recently-acquired “possession” of the children, so as to avoid endorsing the view that possession is 9/10ths of custody law.
  3. Specific nurturing responsibilities and involvements.
    Who has done exactly what parenting chores with and for the child over the last few years. This is something easily lied about and hard to prove.
  4. Stability.
    Evidence of steady, even temper and dull predictability is helpful. Long tenure in one residence and one job is very helpful. A series of jobs, or of addresses, hurts.
  5. Possession of former family home.
    This is helpful, as it affords the children some continuity. It counts more if the children have not left it.
  6. Unselfishness, or ability to place the child’s needs first.
    We have recently come through a decade that glorified selfishness, and invented scores of euphemisms for it, but it is a quality that judges frequently zero in on – especially in the all-too-frequent case where the parents seem equally fit and a tie-breaker is needed. Many close custody decisions today turn on which parent demonstrated a tendency to place other interests — usually career or new romantic relationships — ahead of the child.
  7. New romantic relationships.
    Usually important only as noted above (in 4 and 6). Also, there is a definite line between the mere taking on of a new partner — which is usually approved as showing a healthy realism and re-stabilizing influence — and sexual conduct witnessed by the child. Adultery, fornication or cohabitation in the same household where the child is staying – even if the child does not witness it – is frowned on by judges, and sometimes by the other parent.
  8. Employment.
    Important as noted above (4). Also, it is better to have employment, though not employment that creates a child-care problem. The parent having a job with flexible hours and near the child has a definite advantage.
  9. Consistent plan for the child.
    The parent who wants to win a custody contest should always tell the judge that he or she has a daily plan covering every minute of the day, with no gaps in child care during which the child would be alone somewhere.
  10. Tendency to afford full contact with the other parent and foster good relationships between the children and the other parent.
    Attacking the other party in a trial shows the judge a poor prognosis as to this point. Thus it should, to the extent it is avoidable, be avoided in favor of showing the advantages of the client retaining custody. You should be able to say something good about the other parent and something disadvantageous about yourself. You will also want to be able to describe what visitation you would want to afford the other parent were you to gain custody, and what visitation you will desire if you are not granted custody.
  11. Being the primary caregiver during the child’s early years (see #3).
  12. Assuring the child’s safety.
    The parent who can provide the child with a safe and secure neighborhood, a safe walk to school, fenced yard, detached house, etc., will gain favor in a custody hearing.
  13. Continued contact with extended family.
    Continued contact with the extended family — especially grandparents, and more especially the in-law grandparents — is an important part of ensuring that the best interest of the children is met. Remember, many judges are grandparents themselves.
  14. Larger quarters.
    Though courts constantly say that they avoid comparing the material advantages, their decisions show that they favor a large home — particularly one with a separate bedroom for the child.
  15. The child’s performance and stability while with each parent.
    How the child’s grades and other measures of performance change when with each parent is important in determining the child’s best interests.
  16. The child’s preference, depending on age.
    Above age 13, the judge will probably regard preference as controlling. Age 8-13 judge will probably want to interview a child. Judges may occasionally be curious to meet children ages 6-8 for special reasons.

Please call our offices with any questions you might have. This text is provided only for information and is in no way intended as legal counsel.

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