Custody Q&A

What are the rules on custody of my children?

There is really only one rule to remember here: Whatever is in the best interests of the child is what the Court must do. Often, this may create a result that appears unfair to one parent.  However, fairness is not what the Court looks at. The Court only looks at what is in the best interest of the child.  As stated above, the court first decides child custody at the pendente lite hearing based on the rules set forth in the Virginia Code Section §20-103. The final ruling on custody is then made at the final divorce hearing. The court also has the ability to change the custody decision at a later date if there is evidence of a material change in circumstances that may affect the best interest of the child.

What types of custody are there?

There are two basis types of custody: Legal and Physical. Legal custody determines who can legally decide matters for the child. Physical custody sets forth with whom the child stays at any given time.

Are there different types of legal and physical custody?

Yes.  Legal and Physical custody can be either “Joint” or “Sole.” Joint custody means that the parents share legal or physical custody. Sole custody means that only one person has legal and/or physical custody.

If my spouse gets sole custody, does that mean I will never see my children?

Not necessarily.  In fact, sole custody is almost always accompanied by a rule on Visitation. (When one parent has custody of the child, the time the other parent spends with the child is called visitation.)

Is it possible to have a visitation schedule that lets me see my children very frequently, even if I don’t have actual custody?

Yes.  Custody arrangements can have all sorts of forms. For example, there seems to be little practical difference between Joint Custody, and Sole Custody that is accompanied by extensive visitation.  It really depends on how well you and your former spouse or other parent of the child are able to work together.

What if I don’t want to work with my former spouse because I do not like him or her, or want to keep him or her away from the kids?

In our experience, custody hearings can be the most acrimonious, and thus, the most expensive. As we stated before, if the couple can agree on the rules of custody, the Court will adopt them a majority of the time. So if you can agree, you can save yourselves tens of thousands of dollars in legal fees, not to mention the emotional well-being of your children – and yourself for that matter. You do not have to like your former spouse or the other parent of your child, but you have to accept he or she has parental rights, the same as you.  You need to develop an understanding or even business-style approach to your ex, so that your child and the court are convinced of a real attempt at co-parenting. While it is important to reach an agreement with your spouse on all issues of divorce, custody is the top priority.


If you want to keep your child’s other parent away from the child because of known or even suspected mental or physical abuse, there is a very different course that needs to be taken to protect the child, first and foremost.

What if I try to work with my former spouse, but he or she is just plain unreasonable?

It happens.  Sometimes, one spouse is just not cooperative. It takes two to make an agreement. So, there may be valid occasions for a contested custody case.  Unfortunately, these can be draining both financially and emotionally.  Ultimately, it may become necessary, but custody litigation should be your last resort.  And even if you do your best to safeguard your child from the acrimony, if the child is older than infancy, that child will be negatively affected by legal wranglings.

If I decide to litigate, what standards will the Court use to decide custody?

Again, the standard is  what is in “the best interest of the child.” That is the only rule you need to know!

What gives the Court the right to determine my child’s best interests?

As referenced earlier, the Virginia Code gives Courts the right to make this determination.  And this is another reason why you should try to resolve these matters in consultation with your former spouse.  If the parents of the child can’t decide these matters, the Court will – and it may be a decision neither parent likes.

What does the “best interest of the child” really mean?

Best interest of the child means that the court will focus on what is best for the child. Incorporated into this is the premise that kids do best, when appropriate, to have contact with both parents. (We say “when appropriate” because there are sad cases of abuse and neglect that require the court to suspend or even terminate contact of one parent with their own child). 


The factors that the court uses to determine custody (in summary) are:

  1. Age, physical and mental condition of the child, given the child’s changing developmental needs;
  2. Age, physical and mental condition of each parent;
  3. Relationship existing between each parent and each child, positive involvement in the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
  4. Needs of the child, including other important relationships of the child, (siblings, peers, and extended family);
  5. Role that each parent has played / will play in the upbringing and care of the child;
  6. Whether each parent actively can support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. Relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. Preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
  9. History of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in part 6; and
  10. Any other factors as the court deems necessary and proper to the determination.

As you might imagine, that last factor gives the judge latitude to consider any other information presented by either parent as pertains to the child.

Does the Court give favor to a Mother or a Father? I heard that certain judges are biased to one or the other?

A judge is never allowed to favor one side or the other, based on gender, financial aspects, or similar considerations. Why? Because the test is “What is in the best interest of the child.” Thus, the court will not make presumptions in favor of one of the parents, until all the arguments are made.  Further, it is now unpredictable who the “stay-at-home” parent is, if there is a parent who doesn’t work outside the home – while some might think “it’s always mom who gets custody of the children,” those norms no longer exist, especially in Northern Virginia courts!

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