I'm Facing a Custody Battle

Is Virginia a 50/50 Custody State?

No. Virginia law does not start from a 50/50 split or from any set schedule. Under Va. Code § 20-124.2(B), the court may award joint legal, joint physical or sole custody. The law adds that "there shall be no presumption in favor of any form of custody."

The same law tells courts to assure children "frequent and continuing contact with both parents, when appropriate." Equal time is one possible result. The schedule a court orders depends on the facts of each family.

Legal Custody and Physical Custody

• Legal custody: the authority to make important decisions about the child, such as schooling and medical care.
• Physical custody: where the child lives day to day.
• Joint custody: both parents share legal custody, physical custody, or both (§ 20-124.1).
• Sole custody: one person has care and control of the child and primary authority to make decisions.

A parent without primary physical custody can be awarded visitation, which Virginia courts may also call "parenting time."

Does Virginia Favor Mothers? What Rights Do Fathers Have?

Virginia law does not favor either parent. Section 20-124.2(B) says that "as between the parents, there shall be no presumption or inference of law in favor of either." A mother and a father start on equal footing.

Fathers have the same right as mothers to ask for custody or visitation. For unmarried parents, paternity may need to be established first. It can be done at birth with a signed Acknowledgement of Paternity, or later through the court. If the mother was married at the birth, or in the ten months before it, Virginia presumes her husband or ex-husband is the father.

Grandparents and other relatives can also ask for custody or visitation as "persons with a legitimate interest." The court gives due regard to the parent-child relationship. It can award custody or visitation to another person only on clear and convincing evidence that this would serve the child.

The Best Interests Factors Virginia Judges Must Consider

Virginia courts decide custody based on the best interests of the child. The law tells the court to give "primary consideration to the best interests of the child" (§ 20-124.2(B)). To decide what is best for the child, the judge must consider these factors from § 20-124.3, here in plain words:

1. The child's age and physical and mental health, including changing developmental needs.
2. Each parent's age and physical and mental health.
3. Each parent's relationship with the child, including their involvement and ability to meet the child's emotional, intellectual and physical needs.
4. The child's needs, including relationships with siblings, friends and extended family.
5. The role each parent has played, and will play, in raising the child.
6. Each parent's support for the child's relationship with the other parent, including any unreasonable denial of access or visitation.
7. Each parent's willingness and ability to stay close to the child, and to cooperate and resolve disputes about the child.
8. The child's reasonable preference, if the court finds the child mature enough to express one.
9. Any history of family abuse, sexual abuse or child abuse. The court also considers certain acts of violence, force or threat from the 10 years before the petition was filed. If the court finds such a history or act, it may set aside factor 6.
10. Any other factor the court considers necessary.

Except in consent orders, the judge must explain the findings on these factors, orally or in writing.

How Hard Is It to Get Full Custody?

"Full custody" usually means sole legal custody, primary physical custody, or both. The law has no presumption for or against it. The answer depends on how the factors apply to your family. The statute itself points to some issues. Two examples are a history of abuse (factor 9) and unreasonably keeping the child from the other parent (factor 6).

No one can predict a custody result. Our team can review how the factors may apply to your situation.

Does the Child Get to Choose?

Virginia law does not set an age at which a child chooses. The child's reasonable preference is one factor among ten. The judge decides how much weight it gets, based on the child's intelligence, understanding, age and experience.

Where Fairfax Custody Cases Are Heard

Juvenile and Domestic Relations District Court

Most custody and visitation cases in Fairfax County start in the Fairfax County Juvenile and Domestic Relations District Court, often called the J&DR court. A parent files a petition, either directly with the clerk or with help from a court intake officer.

• Fairfax requires a separate custody or visitation petition for each child.
• The filing fee is $25 for all custody and visitation petitions filed together by one person. It can be waived for someone unable to pay.
• The petition comes with a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) form listing where the child has lived.

Under the UCCJEA, Virginia can generally make a first custody decision when it is the child's "home state." That usually means the child lived here with a parent for at least six consecutive months before the case began (§§ 20-146.1, 20-146.12).

Circuit Court, When There Is a Divorce

If the parents are divorcing, custody can be decided in the Fairfax County Circuit Court as part of the divorce. Suppose the Circuit Court schedules a hearing on custody within 21 days after the divorce is filed. The J&DR court then can no longer decide it, even if the hearing itself takes place later (§ 16.1-244). The parties can agree to send the issue to the J&DR court instead. After a divorce, later requests to change custody or visitation generally go to the J&DR court.

If you and your spouse agree on the children as part of a divorce, our page on uncontested divorce explains that path.

What the First Hearing Generally Looks Like

In Fairfax J&DR court, the first court date is a status hearing. The judge reviews the matters before the court.

• If the parents agree: the judge can enter a final order that day.
• If they do not: the judge generally refers them to a court mediator, at no cost. If mediation succeeds, the agreed order goes to the judge, and the parents do not return to court.
• If mediation fails or is not appropriate: the court schedules a trial. Fairfax J&DR custody trials may not exceed three hours.

At the end of the status hearing, the court gives the parties an order summarizing what happened.

Required Parent Education and Mediation Orientation

When custody, visitation or support is contested, the parties must show they attended an approved parent education seminar. They must have attended within the 12 months before their court appearance, or attend within 45 days after it (§§ 16.1-278.15, 20-103). The seminar lasts at least four hours, and the fee is based on ability to pay, up to $50. The Virginia courts' parent education page lists approved providers, including online seminars.

In appropriate cases, the court also refers parents to a dispute resolution orientation session (§ 20-124.4). A certified mediator runs it, at no cost to the parents. If a party asks, the court must find out whether there is a history of family abuse before making the referral. Taking part in mediation after the orientation is voluntary.

Temporary Orders and Emergencies

While the case is pending, either parent can ask for temporary custody and visitation orders, called "pendente lite" orders. A parent who believes a child is in danger can file a request for an emergency hearing. A Fairfax J&DR judge reviews that request on the day it is filed.

In a Fairfax divorce, the Circuit Court's published guide says it holds hearings on temporary custody or visitation only in an extreme emergency.

Guardians ad Litem and Evaluations

A guardian ad litem (GAL) is a lawyer the court appoints to represent the child's interests. The court decides whether a GAL is needed. If each parent has a lawyer, the court generally appoints a GAL only when the child's interests are not otherwise adequately represented (§ 16.1-266(F)). The court assesses GAL costs to the parties based on their ability to pay.

The court can also order a custody evaluation or a mental health or psychological evaluation to help it decide (§ 20-124.2(D)). The parties may be ordered to pay for it.

After the Order: Appeals, Changes, Relocation and Enforcement

Appealing a J&DR Decision

A party who disagrees with a final J&DR order may file a notice of appeal with the J&DR clerk within 10 days (§ 16.1-296). The case then goes to the Circuit Court, which hears it "de novo," meaning a new trial. A Circuit Court final order can then be appealed to the Court of Appeals. The notice of appeal is generally due within 30 days (Rule 5A:6).

Changing an Order

A court will consider changing a custody or visitation order only after a "material change of circumstances" since the last order. If that is shown, the court then decides whether a change would serve the child. Under § 20-108, intentionally withholding visitation without just cause may itself be a material change.

Moving With a Child

Virginia custody and visitation orders must require 30 days' advance written notice of a planned move or change of address. The notice goes to the court and the other party (§ 20-124.5). The court can order otherwise for good cause. A move that affects the schedule may lead to a request to change the order, which is decided on the child's best interests.

When a Parent Refuses Visitation

A court order can be enforced. In J&DR court, a parent can file a Motion for Show Cause Summons or Capias (form DC-635). The court can then order the other parent to appear and explain. Courts can punish a willful failure to follow a custody or visitation order as contempt (§ 20-124.2(E)). A knowing, intentional and significant violation of a custody order can also be a crime (§ 18.2-49.1). Our guide for parents who can't see their child explains these steps in more detail, including what to do when there is no court order yet.

How First Point Can Help

First Point Law Group has served individuals and families from Fairfax since 2004. Lisa Benjamin, our lead family law attorney, and Katherine Martell, our managing partner, represent parents in custody and visitation cases. They work in Fairfax and Northern Virginia courts. If you hire us as your custody lawyer, we explain the process and help you prepare for the status hearing and mediation. If the case does not settle, we can present it at trial. Because our firm also practices immigration law, we can help when a custody case overlaps with a parent's immigration matter.

Bring these to a consultation:

• Any existing custody, visitation, support or protective orders.
• Court papers you have received, with their dates.
• Your child's addresses for the past five years.
• A calendar of the current parenting schedule and any missed visits.
• School, medical or counseling records that relate to the dispute.
• Messages with the other parent about the children.