What is a Virginia Child Custody Agreement?

A Virginia child custody agreement is likely in your future if you are going through a divorce and you have had children in the marriage.

A Virginia child custody agreement is a document that divorcing parents make regarding the custody, visitation schedules, and decision-making power of their minor children. The alternative to a custody agreement would be to let the court make all the decisions about custody and visitation.

A custody agreement is different than a property settlement agreement in that it does not settle marital assets or debts, but only covers issues regarding the custody and visitation of minor children.  This is valuable if parents are not able to agree on how to split property, but can agree on what is on what is best for their children.

What are the Benefits of a Virginia Child Custody Agreement?

A Virginia child custody agreement has numerous benefits. By creating a child custody agreement, you and your spouse have the ability to set a visitation schedule that meets both you and your spouse’s needs. As opposed to having a judge, who is a stranger to your family, decide what is best for your children, a child custody agreement is driven by the wishes of the parents and can be tailored to your individual needs.

Additionally, traditional child custody proceedings can be a long, tiring, and expensive process. A Virginia child custody agreement has the ability to save you and your spouse both time and money.

What are the Different Types of Custody in Virginia?

Virginia recognizes several types of child custody. When filing for custody in Virginia, it is important to understand the distinctions between both physical and legal custody, sole and joint custody, and custodial and non-custodial parents.

Physical vs. Legal Custody

Physical custody establishes where the child will live and which parent has the daily responsibilities of caring for the child. The child typically lives with the parent who has physical custody. Physical custody usually involves the daily physical care and supervision of the child.

The parent with legal custody has the ability to make important decisions about the child and the child’s well being.

While the parent with physical custody has the responsibility of physically caring for the child day-to-day, the parent with legal custody has the ability to make important decisions about the child’s well being. A parent can be granted both physical and legal custody.

Sole vs. Joint Custody

Sole custody is where one parent is responsible for the child. The child lives with the parent with sole custody. Joint custody is where both of the parents share the parental duties of caring for the child. If the court grants joint custody then both parents have the right to share in the decision making process about the child’s upbringing. [6]

Custodial vs. Non-custodial Parents

A custodial parent is the parent who is granted physical and legal custody of the child. While a non-custodial parent is the parent who is not granted physical or legal custody of the child.

What happens if I am the Non-Custodial Parent?

If you are named the non-custodial parent you will not have the primary responsibility of child care and decision making of your child. However, this does not necessarily mean you will never see your child. As a non-custodial parent you may still be entitled to visitation rights.

What are Visitation Rights?

Visitation is the right of the non-custodial parent to see and spend time with his or her child. [8] A parent with visitation rights has the ability to spend time with their child based on a visitation plan. A visitation plan includes when the parent can spend time with their child including but not limited to holidays, weekends, and summer vacations.

What Happens if You and Your Spouse Can’t Come To an Agreement?

If you and your spouse cannot reach a child custody agreement then the court will likely have to intervene. You and your spouse may be ordered to attend mediation in order to work out an agreement.

If mediation is unsuccessful then the court will likely hold a hearing. A judge will then be forced to determine custody. When determining custody the court will give primary consideration to the best interests of the child. [9]

What Factors does the Court Weigh When Determining Child Custody?

The court will consider the following factors when determining the custody of the child:

  1. The age and physical and mental condition of the child, with consideration given to the child’s developmental needs;
  2. The age and physical and mental condition of the parent;
  3. The relationship existing between each parent and child, with consideration given to the positive involvement in 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 consideration to other important relationships of the child such as siblings, peers, and extended family members;
  5. The role the 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 or sexual abuse;
  10. Such other factors as the court deems necessary and proper to the determination. [10]

Conclusion

Child custody proceedings can be a long, expensive, and tiresome process. A good Virginia child custody agreement has the ability to save divorcing couples time, money, and the headaches and uncertainty of child custody proceedings.

A good Virginia child custody agreement contains custody and visitation arrangements acceptable to both parents. More importantly, a good Virginia child custody agreement serves the best interests of the child.

While a child custody agreement can be prepared without an attorney, hiring an experienced and competent attorney is recommended. Having an attorney can help you anticipate possible issues, and avoid future custody disputes. Ultimately, having an experienced attorney by your side can best serve to protect the things most important to you.


[1] Va. Code § 20-146.1

[2] Id.

[3] Id.

[4] Va. Code § 20-124.1

[5] Id.

[6] Id.

[7] Id.

[8] Va. Code § 20-124.2

[9] Id.

[10] Va. Code § 20-124.3

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