Custody Types and the Best Interest Factors in Virginia

Kinds of custody

Va. Code § 20-124.1 defines the terms the court uses:

• Joint legal custody: both parents retain joint responsibility for the care and control of the child and joint authority to make decisions about the child, even though the child’s primary residence may be with only one parent.
• Joint physical custody: both parents share physical and custodial care of the child.
• Sole custody: one person retains responsibility for the care and control of the child and has primary authority to make decisions about the child.

Joint custody can also be any combination of joint legal and joint physical custody that the court deems to be in the child’s best interest. As to a parent, the court may use the phrase “parenting time” as a synonym for “visitation” (§ 20-124.2(B1); § 16.1-278.15(G1)).

The starting point

Under § 20-124.2(B), the court gives primary consideration to the best interests of the child and considers and may award joint legal, joint physical, or sole custody, with no presumption in favor of any form of custody. As between the parents there is no presumption or inference of law in favor of either. The court must assure children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of raising them.

A person’s legal possession or consumption of substances authorized under Title 4.1 or the Drug Control Act alone does not serve as a basis to restrict custody or visitation unless other facts establish that it is not in the child’s best interest (§ 20-124.2(B)).

The ten best interests factors

In deciding custody or visitation, including pendente lite orders under § 20-103, the court shall consider the factors in Va. Code § 20-124.3:

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 between each parent and each child, giving due consideration to the positive involvement with the child’s life and the ability to accurately assess and meet the child’s emotional, intellectual, and physical needs.
4. The needs of the child, giving due consideration to other important relationships, 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 about 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 (i) family abuse as defined in § 16.1-228, (ii) sexual abuse, (iii) child abuse, or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years before the petition was filed. If the court finds such a history or act, it may disregard factor 6.
10. Such other factors as the court deems necessary and proper to the determination.

The judge must communicate the basis of the decision to the parties either orally or in writing, and except for consent orders, that communication must set out the judge’s findings on the relevant factors. At either party’s request, the court may order that exchanges of the child take place at an appropriate meeting place (§ 20-124.3).

Who can ask for custody or visitation

A J&DR court can hear petitions from a mother, father, or legal guardian and from any party with a legitimate interest, which is broadly construed and includes grandparents, step-grandparents, stepparents, former stepparents, blood relatives, and family members (§ 16.1-241(A)). The statute lists people who do not have a legitimate interest, such as a person whose parental rights were terminated, with narrow exceptions.

The court gives due regard to the primacy of the parent-child relationship, but may award custody or visitation to another person with a legitimate interest on a showing by clear and convincing evidence that the child’s best interest would be served (§ 20-124.2(B)).

Evaluations, testing, and records

• Evaluations. The court may order a custody evaluation or an independent mental health or psychological evaluation and decide how the parties pay for it (§ 20-124.2(D); § 16.1-278.15(H)).
• Drug testing. When it deems it appropriate, the court may order drug testing of a parent, and a positive result for a substance lawfully authorized under Title 4.1 or the Drug Control Act is not a failed test (§ 16.1-278.15(I)).
• School and health records. Neither parent, whether or not that parent has custody, may be denied access to the child’s academic or health records or child care records unless the court orders otherwise for good cause shown, or, for health records, a treating professional has placed in the record a written statement that access would be reasonably likely to cause substantial harm to the child or another person (§ 20-124.6).

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• Va. Code § 20-124.1, definitions
• Va. Code § 20-124.2, court-ordered custody and visitation
• Va. Code § 20-124.3, best interests of the child; visitation
• Va. Code § 20-103, orders pending suit
• Va. Code § 20-124.6, access to minor’s records
• Va. Code § 16.1-241, J&DR court jurisdiction
• Va. Code § 16.1-278.15, custody or visitation, child or spousal support
• Va. Code § 16.1-228, definitions, including family abuse
• Form DC-574, Information Considered in Child Custody/Visitation Proceedings