Courts make custody decisions based on the child’s best interests. The decision isn’t just a “Who would you like to live with?” situation – it’s a detailed process that involves a variety of factors.
The experienced Fairfax family law attorneys at Select Law Partners have represented clients on all sides of child custody disputes. We help clients find practical solutions and forge mutually satisfactory agreements that support their children’s best interests.
When an agreement isn’t possible, we present your case to the court with convincing evidence and sound argument supported by case law. Call (855) 541-4867 today, but in the meantime, keep reading to learn how we can help protect your child.
Visitation can be changed to best suit your child’s changing needs as they grow older or if there is a material change in circumstance – for example, a visitation agreement for a one-year-old will often look different than that for a ten-year-old.
Parents who share custody of their child on a week-on/week-off basis can have shared physical custody, as can parents who live far from each other, resulting in one parent having custody during the school year and the other having custody during school breaks, and everything in between.
There are multiple possible shared physical custody arrangements, however determining which schedule is best for your child will depend largely on their age, their maturity, the capacity of each parent, each parent’s work schedule, and potentially the relationship between the parents. A child’s custodial schedule can change based on their age, their needs, and the stability offered at each parent’s home.
Shared physical custody also includes schedules for all school breaks and summer vacation away from Fairfax. Preferences for shared holiday schedules are very personal and differ on a case-by-case basis.
It’s expressly noted that the following people may not petition for visitation or custody:
Our compassionate family lawyers handle a variety of child custody issues
Separating from your child’s other parent (your co-parent) requires agreements or orders on a multitude of child custody issues, all which should be for the benefit of your child. The most common issues surrounding child custody are:- Child custody itself (legal and physical custody)
- Visitation or parenting time
- Relocation with the children
- Modifying an existing agreement or order.
Child custody
Child custody involves legal custody (the decision-making rights) and physical custody (where the children spend their time); there can be joint or sole legal custody, there can be joint or sole or split (when there are multiple children) physical custody, whichever serves a child’s best interests. When parents are unable to agree on legal or physical custody, the court will issue an order after considering the facts of the case. In making this determination, the court will consider certain factors to identify the appropriate order for your child. Legal and physical custody may be changed at any time by agreement or by a court order, however, in some situations cause might be necessary to obtain a new custody order.| The child’s age and relationship with each parent are just two of the many factors that a judge will consider when making a custody decision. |
Visitation rights
State law provides visitation to a parent who doesn’t have primary or joint physical custody–this is the manner in which they spend time with their child. Visitation is also referred to as parenting time. Any visitation or parenting time that’s either agreed to or ordered must be in the child’s best interests.
Visitation can be changed to best suit your child’s changing needs as they grow older or if there is a material change in circumstance – for example, a visitation agreement for a one-year-old will often look different than that for a ten-year-old.
Relocation
With the cost of living shifting throughout the nation and an increased ability to work remotely, Virginians are moving at a greater rate than ever. When a parent wants to move with the children out of state or to a different part of the state, they must consider how the move will impact their children, including their relationship with the other parent. Under state custody and visitation law, the parent that intends to move must provide the other with a written notice at least 30 days prior to their intent to relocate, including their new address. There’s statutory protocol that must be followed before you can move with your children, such as providing at least 30 days’ notice of your intent to relocate, but there might be additional requirements based on your custodial situation and existing court orders. A substantial relocation will require a custody and visitation modification, a modification which requires the application of the best interests standard. Whether you’re seeking to relocate with your children or you’re opposing their potential move, you need an experienced Fairfax attorney by your side to advocate for you and what you feel is best for your children.Modifying existing court orders
Your custody and visitation orders can be modified at any time, however if the parties do not agree, then the court will need to find that there has been a material change in circumstances since the last custody or visitation order and that such a change coupled with the best interests of the child require that the current order be modified. In a modification action, the material change of circumstance is an additional legal standard which must be presented to the court and be supported by relevant statute and case law before the court will get to the best interests of the child standard. It’s imperative that your request for modifications (or your opposition to a request) be properly drafted, argued, and filed with the appropriate court. A failure to properly argue a change of circumstances could result in your request being denied. Examples of changes in circumstances that the court might consider material include:- Relocation or proposed relocation
- Non-compliance with existing orders of the court
- The natural development, age, and growth of the child may also change the circumstances of existing court orders related to their support.
Types of custody in Virginia
The state recognizes two types of custody: legal and physical, as well as combinations of the two. Legal and physical custody may be granted as “sole” or “joint,” meaning one or both parents retain responsibility of the child, respectively. (i) Joint legal custody is where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child, even if the child’s primary residence may only be with 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 in the child’s best interests. It defines “sole custody” as one parent retaining responsibility for the care and control of a child and has primary authority to make decisions concerning the child.Joint legal custody
When parents share joint legal custody, they are both responsible for the control and care of the child and they share the authority to make decisions concerning key issues in their child’s life. Joint legal custody means that the parents must agree on where the child will attend school, medical providers, religion, involvement in activities, etc. Joint legal custody is commonly ordered by courts because it’s consistent with state law, which requires that when appropriate, the court shall assure that a child has frequent and continuing contact with both parents and that the parents shall be encouraged to share in the responsibilities of rearing their children. Without joint legal custody, a parent may be unable to contribute to important decisions that will forever impact the growth and trajectory of the child. With joint legal custody, parents may share joint physical custody, or one parent might be the “custodial parent” and the other parent has visitation.Joint physical custody
Physical custody refers to where the child spends their time. Although shared physical custody sounds as though custody must be shared equally between the parents, an equal split isn’t necessary for a physical custodial arrangement to be considered “shared.” In Virginia, if each parent has more than 90 days of custody during the year, the arrangement will be considered a shared physical custodial arrangement.
Parents who share custody of their child on a week-on/week-off basis can have shared physical custody, as can parents who live far from each other, resulting in one parent having custody during the school year and the other having custody during school breaks, and everything in between.
There are multiple possible shared physical custody arrangements, however determining which schedule is best for your child will depend largely on their age, their maturity, the capacity of each parent, each parent’s work schedule, and potentially the relationship between the parents. A child’s custodial schedule can change based on their age, their needs, and the stability offered at each parent’s home.
Shared physical custody also includes schedules for all school breaks and summer vacation away from Fairfax. Preferences for shared holiday schedules are very personal and differ on a case-by-case basis.
Sole custody
When the court awards sole custody to one parent, that parent has the primary responsibility for the care of the child and has the authority to make all the daily and important decisions for the child. An award of sole custody is less common than any joint legal custody and joint or primary physical custody award. The court might issue a sole custody order when one parent is incarcerated, they’ve left the state indefinitely, or when a court has found that they’ve committed domestic violence. When one parent has sole custody, the other parent might have visitation or supervised visitation, though any visitation orders are case-specific.| Family law attorneys play an essential role in helping maintain your child’s safety and wellbeing. |
Factors considered by the court when determining custody
When issuing a custody and visitation order in Fairfax, courts must weigh 10 factors in order to determine what is in a child’s best interests. The court has broad discretion when considering these factors and may weigh some factors heavier than others based on the facts of your case and any presented evidence.- The child’s age and physical and mental condition. As children age and develop, the types of support they need as their mental and physical development changes. For example, a very young child will likely need more frequent but shorter time with both parents, whereas a teenager might prefer to spend a week with each parent.
- Each parent’s age and physical and mental condition. This is an important factor considered by the court because a parent with changing or declining cognitive function might be unable to provide appropriate and safe support to the child, or they might unintentionally put the child in a “parent” role where they feel that they need to care for their parent.
- Relationship between each parent and each child. The positive and engaged involvement of both parents is integral to meeting the full emotional, intellectual, and physical needs of a child. By forming a meaningful and lasting relationship with each parent, a child benefits from their time, input, and experience. If there’s evidence that more time might be needed to build or strengthen the bond between a parent and a child before joint physical custody can be ordered, the court may provide a parent with some visitation with built-in room for growth or will specify that a modification may be sought based on certain milestones such as the child’s age.
- The needs of the child and their other important relationships. In making a custody determination, the court will consider important relationships the child has such as those with siblings, peers, and extended family members. These considerations are especially important when a relocation request is before the court.
- Role that each parent played and will play in the care and upbringing of the child. The court may consider each parent’s prior and present involvement with the child’s daily care and management for an indication of what they might provide in the future. That’s not to say that if, in the past, you weren’t the parent who registered the child for school or activities that your ability and potential to fill those roles won’t be given due consideration, however, the court might want proof that you can provide the necessary daily care and handle tasks like scheduling doctor’s appointments.
- Each parent’s tendency (or lack thereof) to actively support the child’s contact and relationship with the other parent. The state legislature’s goal is to ensure that, when appropriate, a child has frequent and continuing contact with both parents. If one party has shown that they aren’t likely to encourage and foster the child’s relationship with the other parent, such as by withholding visitation or not abiding by court orders, the court is less likely to order joint custody.
- Each parent’s willingness and ability to maintain a close and ongoing relationship with the child and to be cooperative when resolving child-related disputes. Some parents might not have a close bond with their child, and they might want to keep it that way post-separation with only limited visitation. A parent’s disinterest in their child can be psychologically harmful to the child and could result in neglect. In instances like this where it’s clear that a parent doesn’t want to be involved or won’t be cooperative with the other parent, primary custody to one parent and visitation rights to the other might be best to ensure that the child is raised in a stable and positive environment.
- The reasonable preference of the child (if appropriate). The court may consider a child’s preference if they (the court) determines that the child is of reasonable intelligence, understanding, age, and experience to express their preference. Family law is often filled with allegations from each parent of things the child said, including their preference of where to live. In these situations, if the child is of a proper age and maturity, the court will speak with the child and consider their preference. Although the court will consider what the child says, they are not required to order what the child wants. Judges have experience and training for interviewing children, so they can tell if the child is being insincere or has been coached, and a coached or influenced “preference” might not be considered. In fact, evidence of coaching or influencing a child might be considered by the court because children shouldn’t be involved in the fight between their parents.
- History of family, sexual, or child abuse, or other acts of violence, force, or threat. The court will consider instances of family abuse, sexual abuse, child abuse, or acts of violence, force, or threat that occurred within the 10 years preceding the filing of the petition. If there is a history of abuse, the court may disregard factor 6. Historical issues of abuse are not taken lightly by the court and may affect your custodial rights.
- Other factors the court deems necessary and proper. The court has broad discretion to consider anything it feels is relevant to the proceedings when making a ruling on custody and visitation. This can include evidence of inappropriately involving a child in the custody dispute or frequently allowing a child to skip school without just cause.
Grandparent and third-party custody and visitation rights
State law allows a “person with a legitimate interest” who has properly joined the action to have visitation with or custody of a child after showing that any such visitation or custody would be in the child’s best interests. A “person with a legitimate interest” must be broadly construed by the court but includes:- Grandparents
- Step-grandparents
- Stepparents
- Former stepparents
- Blood relatives
- Family members
It’s expressly noted that the following people may not petition for visitation or custody:
- Any person whose parental rights were terminated (voluntarily or involuntarily)
- Any person whose interest in the child stems from a person whose parental rights were terminated
- A person who has committed any of the crimes outlined in §18.2-61(A), §18.2-63, §18.2-366(B), or an equivalent offense in another state or country
