Types of Custody in Virginia
By weatherleyd38885995, Jan 6 2016 06:17PM
It is important for Hanover County parents facing a custody or visitation case in Hanover County, or any Court of competent jurisdiction within Virginia, to understand the differences and similarities between the different types of custodial arrangements under Virginia law:
Sole Custody. With “sole custody,” one parent assumes the major role in the physical, emotional, and moral development of the child. The custodial parent has primary authority to make all major decisions affecting the child, who lives primarily with this parent. Sole custody is defined under Virginia Code § 20-124.1 as an arrangement whereby “one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.” For Hanover County parents this could result in unilateral decisions being made in a medical setting or within the Hanover County public and private schools.
Joint Custody. In a “joint custody” arrangement, both parents assume responsibility for the physical, moral, and emotional development of the child, and there are shared rights and responsibilities for making decisions that affect the child. Virginia Code § 20-124.1 provides:
“Joint custody” means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
Shared Custody. Virginia Code § 20-108.2(G)(3) states that the shared custody child support guidelines will only apply when each parent has “physical custody” of a child for more than 90 days. Under these “shared support” guidelines, the primary custodian will typically receive less child support than under the regular child support guidelines. It is therefore important to understand how days are calculated for purposes of the “90 day rule.” Virginia Code § 20-108.2(G)(3) states that a “day,” for purposes of application of the shared custody child support guidelines:
…means a period of twenty-four hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than twenty-four hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period. This also could be beneficial in deciding which school the child attends if one of the parents happen to live outside of Hanover County.
The shared custody support guidelines may not apply when a parent who has 90 days of visitation has failed to exercise them. In addition, the parents themselves may agree not to apply the shared custody child support guidelines even though the 90-day threshold has been met.
Split Custody. In a split custody arrangement, each parent has primary or sole custody of one or more of the children. Virginia Code § 20-108.2(G)(2) explains that split custody, for child support purposes, is an arrangement in which “a parent is a custodial parent to the children in that parent’s family unit and is a noncustodial parent to the children in the other parent’s family unit.”
Divided Custody. The term “divided custody” describes the status of a child who lives alternately with one parent and then the other for specified periods of time, with each parent having primary custody rights while the child resides with that parent.
How Do Courts Decide Custody Cases in Virginia?
Courts in Virginia are legally required to base decisions regarding custody and visitation on the best interests of the child, applying the factors listed in Virginia Code § 20-124.3. You should go over those factors with your custody lawyer, and determine which factors will favor you in your case, and which will favor the other parent.
From my experience, these are the six most important factors considered by Virginia courts in deciding custody and visitation cases:
1. The Status Quo. The power of the status quo can’t be overstated. If one party stays in the marital home with the children within the county of Hanover school system, they will start with a leg up. They can argue that the children are comfortable in a familiar environment, with established neighborhood friends nearby and the peace of mind found in maintaining the same school within Hanover County. Judges will typically strive to make a divorce as painless for a child as possible, and believe that continuing similar routines in familiar places will aid in the transition. If the child lives in Hanover County, has friends in Hanover County, and has extracurricular activities in the County of Hanover this factor can weigh heavily in favor of the local parent.
2. Primary Caregiver. The judge will want to hear which parent is primarily responsible for day-to-day events and activities with the children, including medical care (doctor’s appointments, prescriptions), educational involvement (homework, parent-teacher conferences, field trips), extracurricular activities (coaching Little League, being a Girl Scout den leader, driving responsibilities), morning and bedtime routines, and even meals and laundry. Obviously, a stay-at-home parent will have an advantage in most of these categories, but that can be overcome by some of the other factors. See The Primary Caregiver in Virginia Custody Cases for an analysis of this important factor.
3. The Parent-Child Relationship. Courts will consider the bond between each parent and the children. This is often difficult to quantify, but evidence of having activities with the child (going for hikes, building model trains together, reading bedtime stories, watching sports together) can help to demonstrate a strong and lasting connection.
4. Which Parent is More Likely to Co-Parent Willingly and Effectively? Even if one parent can “check all of the boxes” with the above factors, this fourth factor can occasionally override them all. If one parent seeks to destroy the other parent’s relationship with the children, and it can be proven, the court will react strongly to such behavior. Which parent is more likely to keep the other in the loop on meetings, recitals, practices and games for the children? Who is more likely to copy the other parent on emails with teachers or administrators? Which parent will willingly consult with the other before making an important decision in the child’s life? Has either parent disparaged the other in the presence of the child, or allowed others to do so? Has either parent used the child as a conduit for inappropriate information from parent to parent, or as a message delivery system regarding the divorce? Is there written or recorded evidence of this behavior? If so, it could be a game changer. Judges typically want to reward good behavior and punish bad behavior. And they don’t want to award primary custody to a parent who will abuse the position of power and authority that the court has granted them.
5. The Reasonable Preference of the Child. Virginia Code § 20-124.3 instructs the court to consider the child’s “reasonable preference” as to custody and visitation, “if the court deems the child to be of reasonable intelligence, understanding, age and experience.” However, this is a high bar to clear, and having your child testify can easily backfire. Many judges follow the mantra that “whoever calls the child as a witness, loses.” This is presumably based on a theory that a parent who is willing to put the child on the witness stand is not really pursuing the child’s best interest. So, proceed with caution in this area. Is the child a mature teenager? Will the child’s reasoning for his or her preference be compelling? Can the testimony take place “in camera” (typically in judge’s chambers or out of the earshot of both parents)? The answers to these questions can determine the wisdom of putting your child on the stand, which should be a rarely-employed tactic in Virginia custody cases.
6. Any history of violence or abusive behavior. This factor also has the potential to overwhelm all others, as the court will not place a child in harm’s way.
Denial of Visitation
Parents who take it upon themselves to deny visitation rights without following the proper channels through the courts, do so in violation of Virginia law. Even in cases of non-payment of child support, it is simply not appropriate for a parent to arbitrarily deny court-ordered visitation.
A parent who refuses to allow another parent visitation that has been court-ordered risks being found in contempt of court, thus subjecting themselves to possible jail time or a fine. Denial of visitation by a custodial parent can also result in the court transferring custody to the other parent.
It is also important to understand that the noncustodial parent’s failure to pay court-ordered child support does not legally justify the custodial parent’s denial of visitation. The reverse is also true: denial of visitation does not justify non-payment of child support.
Modification of Custody and Visitation
Custody and visitation issues are never permanently settled (until the children are grown). As children grow, parties remarry, and priorities change, a modification of custody and visitation may be required.
Virginia Code § 20-108 allows for modification of a custody or visitation order when (1) there has been a material change of circumstances and (2) it is in the best interest of the children to modify custody or visitation. The change of circumstances must have taken place after the entry of the last order in the case—it cannot be based on testimony or evidence that pre-dates the entry of the last order.
The change of circumstances may be either positive or negative. A positive change could be a parent’s remarriage or getting a new job with either a higher salary or more flexible work schedule. A negative change could be a child developing behavioral problems, one parent struggling with substance addiction, or a criminal conviction of a parent. As stated above, one parent’s denial of court-ordered visitation may also be a material change of circumstances allowing for a modification of custody.
If the court determines that there has been a material change of circumstances, it will then proceed to examine the best interests of the children by applying the factors listed in Virginia Code § 20-124.3. These are the same factors that were considered at the initial custody hearing, and include the age of the children; the health, needs, and relationship that each child has with each of their parents; and for any child of sufficient age, the child’s preference as to custody.
With more and more parents finding the need to move due to family connections, changes in employment and varying costs of living in different states across the county, relocation has steadily become a hot topic in custody cases. For answers to your questions on relocation, see Relocation in Virginia Child Custody Cases.
Grandparent Custody and Visitation
Virginia law allows any “person with a legitimate interest” to petition for custody or visitation. The Virginia Code specifically defines “persons with a legitimate interest” to include grandparents. Our custody lawyers are experienced in representing grandparents in custody and visitation disputes, particularly where both parents are unfit or “out of the picture” for one reason or another. For answers to your questions on grandparent custody and visitation, see Grandparent Rights in Virginia.
Home Studies and Guardians Ad Litem
The judge may not be the only official with whom you will have to deal in your custody and visitation case. First, the judge may order “home studies” in your case, in which a social worker is sent to the homes of the contending parents. The social worker will evaluate each home, speaking with each parent (and sometimes the child), and report back to the judge. Second, the judge may appoint a guardian ad litem, a lawyer who shall be tasked with representing the best interests of the child. The guardian ad litem will speak with each parent and the child, and make a recommendation regarding custody and visitation to the judge. For more information, see The Role Of The Guardian Ad Litem In Your Case.
If you are contemplating a custody battle, call me for a free initial consultation.
Doug Weatherley Esq.
I Practice in all Courts in the greater Richmond area with my office located in Mechanicsville, within Hanover County