How Is Child Custody Determined In Virginia?

Updated: Feb 12, 2023

A question that often comes across from potential clients and existing clients is how is child custody determined in Virginia. While the direct answer may be easy and rather straight forward, the application of that answer regarding Virginia child custody laws is not as simplistic. As always, please remember that this is not intended to replace competent legal advice. If you would like to speak with us, feel free to call us or text us at 757-454-2110 or fill out a Free Consultation Request form. If you would like to someone else, we understand completely but please make sure that the attorney knows about child custody laws in Virginia.

So, let’s start with trying to answer the question. Child custody determinations are initially governed by the Code of Virginia. The applicable statute is Virginia Code Section 20-124.3. This statute gives the Court ten (10) factors to consider regarding child custody and visitation. They are as follows:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively 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. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable 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. Any 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 § 19.2-152.7:1 that 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 subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

That’s it. Seems simple doesn’t it? Unfortunately, Virginia child custody laws were not written for the general public to be able to simply understand. We cannot break it down in “plain English” in a simple post and we do apologize for that, however, as you can see it really is not that simple.

So the starting point for child custody determinations in Virginia is this Code section. The law says that the Court has to consider these factors and relate to the parties the basis of the decision. What has to happen for you is that your attorney needs to make sure that you understand these factors and apply the facts of your particular situation towards these child custody laws.

In other words, each case is different. There is no “one size fits all” when it comes to child custody in Virginia. What we like to tell our clients is to think of your case as a puzzle – each fact is a particular piece of that puzzle. Some facts are edges or corner pieces meaning they are important to get established first to set the stage for the child custody case. Other facts are important towards the whole, however, they may be pieces of blue sky or fluffy clouds – they are necessary to finish the puzzle, however, they are not the foundation points of the case. Now some attorneys and even judges try to put cases in a “slot” to treat child custody cases the same despite the specific facts of the situation. This is not right and we hope that you are not treated that way.

Going back, we said that the statute we listed was a start in determining child custody in Virginia. We also said that all cases of child custody are different and no two are the same. So what is the next step if the statute is first? Case law. By this we mean looking at prior cases deciding child custody. This can be cases decided by the Circuit Courts, the Court of Appeals, or the Virginia Supreme Court. These cases create what we call precedent and give everyone guidance on the interpretation of the laws in Virginia. It helps judges, attorneys and even parents know what is important, what is the law, and how to present a case. So, again, even though we gave you the statute above there is still more story and the law is not as simple as the statute.

Lastly, the overwhelming majority of child custody cases in Virginia are heard in the Juvenile & Domestic Relations Courts in Virginia. These are considered courts “not of record” meaning that there is no reported case opinions out there to help guide you in these Courts. That is why it is important, if you are going to hire an attorney, to hire one that is familiar with how the Court you are in handles cases. Each Court, each judge is different. What one Court deems important may not be important to another Court – even in the same courthouse. Predictability is a compliment to pay a Court and that is where the saying “the best lawyers know the judge” comes into play. An experienced child custody lawyer should be able to give you an idea of how your Court will probably handle your case. No one can tell you exactly what is going to happen and any lawyer that guarantees you what will happen is probably telling you what you want to hear to get your money. At that point we would suggest getting a second opinion – not necessarily hiring another attorney but just double checking. An attorney that is looking out for your best interests should not mind you getting a second opinion.

Hopefully this post has been helpful in providing you with some guidance on how child custody is determined or decided in Virginia. If nothing else, we hope that it provides some framework if you have a consultation with an attorney.

For more information, feel free to visit our exclusive family law site for information on divorce, separation, child custody, child visitation, spousal support and child support at BrianThomasson.com.

Again, remember that this is not intended to replace competent legal advice. If you would like to speak with us, feel free to call us or text us at 757-454-2110 or fill out a Free Consultation Request form. As always, we offer free initial consultations with an attorney.