If you’re going through a divorce, child custody issues can be especially challenging and overwhelming. The U.S. Census Bureau reports that 26.2 percent of children under 21 live with only one custodial parent. When deciding on child custody and visitation during a divorce, Virginia courts consider factors related to the child’s well-being, family environment, and the child’s preference.

What Is Child Custody?

The term “custody” is defined as the “care, control, and maintenance” of a child. In some circumstances during a divorce, the court may need to make a determination about child custody. In general, these are the types of custody arrangements the court may choose:  

  • Joint legal custody. Even though a child may live with only one parent in this scenario, joint legal custody allows for both parents to make decisions about the child and contribute to his care and control.
  • Joint physical custody. A child may live with both parents at different times in joint physical custody, and both parents share responsibility for decisions, care, and control.
  • Sole custody. If a parent has sole custody, he is given responsibility for making daily decisions and caring for the child.

How Do Virginia Courts Determine Custody?

When a divorcing couple is unable to make responsible custody decisions in the best interests of the child, it is sometimes necessary for a judge to step in and evaluate certain factors to rule on custody. When considering each parent for primary custody, courts look at:

  • Ages of both child and parents
  • Mental health of child and parents
  • Relationships between each parent and child
  • Needs of the child, including special needs
  • Each parent’s ability to cooperate with the other and support or maintain a close relationship with the child
  • History of drug abuse, physical or emotional abuse, or adultery
  • Best interests of the child

What Is "Visitation" for Parents?

Visitation is granted to whichever parent does not have primary custody and allows for contact with her child. Granting visitation does not give the non-custodial parent any power when it comes to daily decisions. However, the court does work with both the custodial and non-custodial parent to define the terms of visitation—either supervised or unsupervised.

Initially, a Virginia judge will work to ensure that the child has access to frequent and continued contact with each parent. However, factors such as a history of physical or drug abuse may change the terms of visitation. Even if a parent is denied primary custody, the judge often provides supervised visitation rights. Finally, it’s important to remember that once visitation plans have been ordered, they cannot be changed unless something significant changes after the order.

Defining the “Best Interests” of a Child

In Virginia divorce proceedings involving custody and visitation orders, the term “best interests of the child” is often used. Virginia courts make a determination about this on a case-by-case basis, looking closely at:

  • If one parent has a better relationship with the child
  • If one parent is better able to care for the child emotionally, financially, and intellectually
  • If one parent has a better understanding of the child’s physical, mental, intellectual, and emotional needs
  • If one parent is more willing to cooperate with the desires of the other parent
  • If one parent has a criminal record or history of drug, physical, or emotional abuse
  • If one parent has more similar religious views with the child, when it involves a child’s well-being

Additionally, when considering the best interests of the child, courts often interview the child to gain a better understanding of his wishes. Even the opinion of a five- or six-year-old child matters to the court. However, more weight might be given to the wishes of a teenage child.

Do You Need Help From an Experienced Family Lawyer?

If you are considering divorce and need assistance with custody and visitation decisions, we are here to help. The Fairfax family and divorce attorneys and counselors of Kearney, Freeman, Fogarty & Joshi have been a valuable legal resource in the community for decades. Our office headquarters is located in historic downtown Fairfax, Virginia, and we proudly serve all of Northern Virginia, Washington, D.C., and Maryland. To ask questions or learn more about your custody and visitation case, call us at 877-652-1553 or 703-691-8333.

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