If you are considering getting divorced, you probably have many questions about the divorce process, including child custody. When we meet with new clients who are parents, child custody matters are typically at the forefront of their minds. Parents are concerned that they may lose their ability to see their children or that their soon-to-be ex-spouse will receive sole custody. The good news is that Virginia judges do not automatically prefer mothers or fathers, and they consider multiple factors when determining child custody cases. We will answer some of the most frequently asked questions regarding child custody in Virginia below.
What are the Two Types of Child Custody Arrangements?
Virginia judges typically determine two different types of child custody — physical custody and legal custody. Legal custody refers to a parent’s authority to care for and control the child through decision making related to the child. On the other hand, physical custody determines where the child will live and which parent is in charge of their daily care.
What is Joint Custody?
Joint custody is a legal arrangement in which both parents have authority and responsibility for their child’s control and care. Joint physical custody means that both parents share physical and custodial care of the child, but they may not equally share physical control of the child. For example, parents can have joint custody with the child living with one parent 75% of the time, and the other parent 25% of the time.
What is Sole Custody?
Sole custody indicates that one parent has the complete authority and responsibility for caring for and controlling the child. When one parent has sole custody, the child will live with that parent full-time. The non-custodial parent may still have the right to visit the child, but the child will live with only one parent. Virginia courts are reluctant to grant sole custody now because they understand both parents benefit from playing an active role in a child’s life, if possible. However, when joint custody would be dangerous for the child, they are more inclined to grant sole custody to one parent. For example, if one parent was engaged in physical or verbal abuse or struggled with alcohol or drug addiction, sole custody may be in the child’s best interest.
How Do Judges Determine Child Custody Matters?
Under Virginia law, judges determine child custody arrangements, both physical and legal, based on a multitude of factors. All of these factors attempt to determine what type of arrangement is in the best interest of the child or children involved. Judges must consider multiple factors set forth in Virginia law when making child custody determinations, such as:
- Any history of sexual abuse or family abuse
- The child’s reasonable preferences when the court deems the child to be of reasonable intelligence, understanding, age, and experience to express a preference
- The demonstrated ability and relative willingness of each parent to maintain a close and continuing relationship with the child.
- The ability of each parent to cooperate with the co-parent to resolve disputes regarding matters involving the child
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether or not one parent has unreasonably denied the other co-parent from accessing or visiting the child
- The role each parent has played in their child’s upbringing, and the role each parent will play in the future care and upbringing of the child
- The child’s needs, including any other important relationships to the child such as peers, siblings, and extended family members
- The relationship between the parents and child, considering all of the positive involvement each parent has had in each child’s life as well as the ability of each parent to accurately assess and meet the intellectual, emotional, and physical needs of the child
- The physical and mental condition of each parent
- Each parents age
- The age and physical and mental condition of the child, considering each child’s changing developmental needs
Who Pays Child Support When Both Parents Share Custody?
Child support determinations are separate from child custody determinations. Virginia judges look at a specific formula when they determine whether one parent must pay child support. The formula considers the number of children involved, both parents’ incomes, and any support that a parent must pay for a child from another marriage. Judges also consider the number of days the non-custodial parent spends with their children. Judges use the Virginia child support formula to determine child support, and the formula is presumed to be the correct amount of child support. However, judges do have some discretion to decrease or increase the amount of child support when specific circumstances warrant doing so.
Can a Parent Deny Visitation When Child Support Has Not Been Paid?
Many parents wonder if they can deny their co-parent the right to visit with the children when he or she has not paid the court-ordered child support. Legally speaking, child visitation and child support are two separate matters. Under Virginia law, both parents have a right to have a meaningful relationship with their children. One parent cannot unilaterally prevent another parent from visiting with the children simply because child support has not been paid. That parent would need to petition the court and ask the court to enforce the child support agreement. If one parent thinks that the other parent should not visit the children at all for another reason, he or she can petition the court to modify the child custody arrangement. Keep in mind that the parent will need to show that there has been a significant change in circumstances that would warrant a limitation on visitation. Failure to pay child support on time is not enough to do so.
Contact a Lynchburg Child Custody Lawyer
If you are considering getting a divorce, or you are already divorced and need to modify your child custody agreement, we can help. Contact Straw Law Firm Today to schedule your initial consultation.