Last updated on March 19th, 2019
Virginia Child Custody Laws can be found in Va. Code Ann. §§ 20-124.1 et seq. or by just clicking here. While reviewing these laws may seem cumbersome, understanding these laws is crucial for any parent who wants to maintain custody of their child.
Types of Custody under Virginia Child Custody Laws.
There are two types of custody under Virginia Child Custody laws: joint and sole custody.
Joint custody is when two people share in custody of a child. Joint custody can be further divided into joint legal custody and joint physical custody. Legal custody refers to your responsibility to care for and control the child and your ability to make decisions concerning the child. Physical custody refers to instance where both you and the child’s other parent share physical and custodial care of the child. The court will always consider what is in the best interest of the child and has the authority to make any arrangement of joint custody. [i]
Sole custody is where only one person will be able to make decisions concerning the child and will have the sole responsibility under the law for the care and control of the child.[ii] While one parent may be granted sole custody, the other parent may be able to still acquire visitation rights.
What Can Judges Do?
Rule In Favor of Best Interest of the Child
Judges will take it upon themselves to watch out for children who are often caught in the middle of family strife. Under Virginia child custody laws, a judge must consider what is in the best interests of the child when deciding on matters of custody and visitation.[iii]
Factors a judge must consider are:
- The child’s maturity.
- The child’s developmental needs
- Each parents’ physical and mental condition;
- The child’s relationship with each parent;
- The child’s relationship with siblings, peers, and extended family members;
- The role each parent has played and likely will play in the child’s upbringing;
- Whether the parent will support the child’s relationship with the other parent;
- The willingness of each parent to maintain a close relationship with the child;
- How parents will cooperate and resolve disputes regarding the child;
- If the child is of reasonable intelligence and understanding, the reasonable preference of the child;
- Any history of family or sexual abuse.[iv]
Looking out for the best interest of the child is the main goal of the court. In fact, a judge may grant custody to an individual who is not a parent of a child.
While the court will generally favor a parent over another interested party, the court has full authority under Virginia child custody laws to consider other individuals as custodians.
These persons can include, but are not limited to: grandparents, stepparents, former stepparents, blood relatives and other family members.[v] The only limitation on the court granting custody to such individuals is that Virginia child custody laws bar a judge from granting custody to any person:
- whose parental rights have been terminated by court order;
- whose interest in the child derives from or through a person whose parental rights have been terminated; or
- who has been convicted of rape, Carnal knowledge of child between thirteen and fifteen years of age, incest, or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation.[vi]
When a parent’s custody is being contested by another interested nonparental individual, the burden is on the third party to overcome the presumption in favor of parental custody.[vii]
Interview Child Outside of Parents’ Presence
Knowing that children can be afraid of the courtroom or embarrassed in front of their parents, Virginia child custody laws allow a judge to interview a child in camera.[viii] If the court chooses to do this, then a record of the interview must be prepared, unless the parents agree that it is unnecessary. This interview record will be made part of the court record unless the court believes that by allowing it to enter the record would endanger the child. Each parent will have to contribute to the cost of making the record.
Order that the Child Receive a Mental Evaluation
A judge may order that your child receive a mental health or psychological evaluation to assist the judge in determining what is in the child’s best interests. The judge may also force you and the other party to pay for the evaluation.[ix]
Grant Visitation Rights
The judge may grant, as he deems appropriate, visitation rights to any parent. Again, the court will consider what is in the best interest of the child.
To help alleviate the strain on the court’s docket and to attempt to have parties make arrangements outside of an adversarial system, a court may refer you to a certified mediator.[x]
Any issues that remain in dispute after mediation will be brought before the court.
The mediator will not cost either of you a dime. Rather, the state of Virginia will pick up the tab.
Require notification of relocation
The court will require that should either parent with custody of the child decide to move he or she must give thirty days advance written notice to the court and the other party.[xi]
Deny parent access to a child’s records.
Generally speaking, you–whether you have custody or not—will be entitled to access your child’s academic and health records. The court may, however, deny you access to such records under limited circumstances.[xii]
Limiting Parent’s Access to Health Records. A judge may deny a parent’s access to your child’s health records if the treating physician or the treating clinical psychologist provides a written statement that in his professional judgment, “the furnishing to or review by the requesting parent of such health records would be reasonably likely to cause substantial harm to the minor or another person.”[xiii]
The court may also deny access to health records for good cause shown.
Limiting Parent’s Access to Academic Records. The court may deny a parent the right to review his child’s academic records if there is good cause shown that it is in the best interest of the child.
What is “good cause”?
Good cause to deny a parent access to his child’s medical records has been shown where the father has been incarcerated on an 18-year sentence for marital sexual assault, among other things.
The child’s therapist testified that allowing the father access would interfere with treatment and given the father’s situation there is noting the father could do to help with the treatment of the child.[xiv]
Can You Remove Your Child from Virginia?
If the court allows you to, then yes. The court will only permit the removal of a child from Virginia when it is in the best interests of the child.[xv] The court may not, however make a predetermined automatic reversal of custody, based upon an undetermined move in the future.[xvi]
Can You Stop a Parent from Removing a Child from Virginia?
Yes, again, the court considers the best interests of the child. Even where the other parent has legitimate reasons to leave (a better job, or closer to relatives), the court will consider all factors in making its decision to allow the relocation.
For example, in Carpenter v Carpenter, the Virginia Supreme Court upheld a decision preventing a custodial mother from removing her children form Virginia without the court’s prior approval.[xvii]
Although the mother wanted to move to the other state to be closer to her relatives and seek better employment opportunities, the court was concerned both with affording the father continuing visitation rights and with the fact that the children apparently were well-adjusted in the location where they had resided since their birth.
What Happens to Your Child Custody or Support Order Once a Parent Moves?
Simply leaving Virginia will not make your court order void. Most states have adopted some form of the Uniform Child Custody Jurisdiction and Enforcement Act which can allow parents to enforce their rights across state lines. For more information click here.
What Happens to My Custody Rights if I am Deployed Overseas?
Again, the court will consider what is in the best interests of the child.
When a parent is deployed, it may in the best interest of the child to live with his or her other parent while you are deployed. You may petition the court to allow another family member (such as your spouse who is the child’s stepparent) to have visitation rights with your child while you are deployed.[xviii]
Once you return from deployment, you can petition the court to review the custody or visitation order that was issued due to your deployment. Your petition will be given precedence on the court’s docket and will be set within 30 days of your filing the motion.[xix]
If You Voluntarily Gave Up Custody of Your Child Can You Later Regain Custody?
Yes, but you must show that circumstance have changed since the previous order that it would be in the child’s best interest for the custody to transfer back to you.[xx]
Must You Maintain Custody of Your Child Until He or She Turns 18?
Generally speaking, you are the natural guardian of your child until he or she turns 18 years old. However, you may able to voluntarily relinquish your rights to an interested third party. You may also petition the court to have your child emancipated once he or she turns 16 years old and meets certain conditions.[xxi]
Virginia child custody laws can be confusing and complex, but the child custody process does not have to be. Have an experienced family law attorney on your side.
If you need help navigating Virginia child custody laws or want to learn more about the process, then contact us today for a consultation.
[i] Va. Code Ann. § 20-124.1
[iii] Va. Code Ann. § 20-124.2(B).
[iv] Va. Code Ann. § 20-124.3
[v] Va. Code Ann. § 20-124.1
[vii] Ferris v. Underwood, 3 Va. App. 25 (1986).
[viii] Va. Code Ann. § 20-124.2:1
[ix] Va. Code Ann. § 20-124.2(D).
[x] Va. Code Ann. §§ 20-124.2(A); 20-124.4
[xi] Va. Code Ann. § 20-124.5
[xii] Va. Code Ann. § 20-124.6
[xiv] Green v Richmond Department of Social Services, 35 Va. App. 682 (2001).
[xv] Gray v Gray, 228 Va. 696 (1985).
[xvi] Wilson v Wilson, 12 Va. App. 1251 (1991).
[xvii] 220 Va. 299 (1979).
[xviii] Va. Code Ann. § 20-124.8.
[xx] Watson v. Shepard, 217 Va. 538 (1976).
[xxi] Va. Code Ann. §16.1-334.