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Does Virginia Favor the Primary Caregiver?

By weatherleyd38885995, Feb 11 2016 08:49PM

Virginia law requires judges to base custody determinations on the best interests of the child, as determined by ten factors stated in Virginia Code Section 20-124.3. Neither parent is automatically favored in these factors—meaning there is no legal presumption in favor of the mother (or the father).

Although Section 20-124.3 does not use the phrase “primary caregiver,” one of the factors listed is the “role that each parent has played and will play in the future, in the upbringing and care of the child.” Another factor is the “relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child.” These two factors will tend to provide an advantage to the child’s primary caregiver—the parent who has assumed the greater responsibility in the day-to-day care and rearing of that child.

Although these factors are important, the court cannot limit its decision to just these two factors. It must consider all ten factors, including the mental and physical health of the child as well as the parents, the ability and willingness of each party to support the child’s other important relationships, the needs of the child, the reasonable preference of the child, any history of abuse, as well as any other factors the court deems necessary and proper to the custody determination.

So, does the primary caregiver have an advantage going into a custody case? Yes. But, is the title of “primary caregiver” indicative of an absolute result? No.

How Does a Court Determine Which Parent Is the Primary Caregiver?

In many child custody cases one parent is clearly the primary caregiver, and that fact becomes evident from the evidence presented at trial. The court will be listening closely for answers to questions such as:

Who helps the children with their homework?

Who attends parent-teacher conferences?

Who takes the children to sports practices and other extracurricular activities?

Who shops for school supplies and new clothing for the children?

Who takes the children to doctor’s appointments? Who picks up their prescriptions, and makes sure they take their medicine when they are sick?

Who gets the children ready for school in the morning and puts them on the bus?

For younger kids, who bathes them at night?

If one parent is the primary caregiver, the answers to these and similar questions will usually reveal that fairly clearly. There are cases, of course, where the parents have each assumed a large share of the parenting duties. Perhaps both parents work outside the home, and each of them have a roughly equal share of responsibilities regarding the children. In those cases, the court may not view either parent as the primary caregiver, and must therefore look to other factors in making its custody determination.

Custody cases are seldom if ever a sure thing. Whether you are the stay-at-home parent or the primary breadwinner, be sure to review the facts of your case with an experienced family law attorney. I have years of experience with custody and visitation cases in the courts of Hanover County and all courts in the greater Richmond area. Contact me for a free initial consultation today.

Doug Weatherley, Attorney at Law


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