Custody and visitation disputes can be some of the most stressful and emotionally draining experiences a parent can go through. While every family is unique and there is no standard custody and visitation arrangement, there are some general principles parents should be aware of when navigating this legal process yourself or when trying to process what a friend or family member might be going through.
- Physical custody and legal custody are distinct.
There are two types of custody: physical and legal. Physical custody refers to the residence where the child primarily resides, while legal custody refers to the right to make important decisions about the child’s life, including education, medical care, religion, and extracurricular activities. In most cases, parents share legal custody of their child or children, but physical custody may be awarded to one parent, or the parents may have joint physical custody. - Custody and visitation orders are determined based on the best interests of the child.
Virginia Code Section 20-124.3 sets forth the specific “best interest” factors that a court must consider when entering custody and visitation orders. These factors include, but are not limited to, the age and physical and mental condition of the child; the existing relationship between each parent and the child; the role each parent has played in the upbringing of the child; the propensity of each parent to actively support the other parent’s contact and relationship with the child; and each parent’s ability to cooperate and resolve disputes regarding the child with the other parent. - Custody and visitation arrangements can be modified.
If there has been a material change in circumstances since the most recent order was entered, there can be a modification to the terms. While what constitutes a material change in circumstance is not explicitly defined in the Virginia Code, such changes must be substantial and may include changes in the child’s life, such as special health or educational needs, negative changes in the custodial parent’s life that may impact the child, or positive changes in the non-custodial parent’s life, such as a remarriage or the creation of a more stable home environment. The relocation of either parent may also constitute a material change in circumstances. If either parent intends to move out of the area, for example, it may be necessary to modify the visitation schedule to accommodate the new circumstances. If both parents agree to the modification, they may submit a consent order to the court that incorporates the modification. If they do not agree, they generally will need to go to court to have a judge decide. - Custody and visitation disputes can be resolved through mediation and/or by mutual agreement of the parties.
Mediation is a process during which both parents will meet to try to come to an agreed upon custody and visitation arrangement outside of court. In mediation, a neutral third party, generally called a mediator, works with parents to assist them in reaching a mutually acceptable agreement. Mediation is a less adversarial process than going to court and can often result in a more satisfying outcome for both parents. In Virginia, courts often order parents to attend a mediation session before seeing a judge. - Custody orders and child support orders are not the same thing.
Custody and child support are separate issues. A parent may be ordered to pay child support without being awarded custody or visitation with the child. Likewise, a parent may be awarded custody without also seeking or being awarded child support from the other parent. - Visitation can be supervised.
In some cases, including those where a parent has a history of domestic violence, child abuse or neglect, or issues with substance abuse, the court may order that the parent have supervised visitation with the child. This means the visits must take place at a facility or in the presence of a third party who will ensure the child’s safety and well-being while in the parent’s care. - Certain third parties, including grandparents, can seek custody and/or visitation rights.
In Virginia, individuals who have a legitimate interest in the child’s life can petition the court for custody and/or visitation. A person with a legitimate interest includes, but is not limited to, grandparents, step-grandparents, stepparents, former stepparents, blood relatives, and family members, provided any such party has intervened in the suit or is otherwise properly before the court. In some cases, a person with a legitimate interest may be granted custody or visitation with the child, even if the parents object. However, the court will only grant custody or visitation if it is in the best interest of the child. - Custody and visitation orders are enforceable by the court.
If a parent violates a provision of the custody or visitation order, the other parent can go to court to enforce the order. The court has the power to order the violating parent to comply with the order and can even impose sanctions, such as fines or jail time, on the parent who has violated the order. - Custody and visitation orders can be appealed.
If a parent is unhappy with a custody or visitation order, they have the right to appeal the decision from the juvenile and domestic relations court to the circuit court. - The child’s preference may be considered by the judge.
Depending on the child’s age and maturity level, the court has the discretion to consider the reasonable preference of the child when determining an appropriate custody and visitation order.
Custody and visitation disputes can be difficult, but there are resources available to help parents navigate the legal process. Parents who are going through a custody and visitation dispute should focus on the best interests of their child or children and attempt to work with the other parent to create a custody and visitation arrangement that works for everyone and creates a stable and loving environment for the child.
