Information on Family Law

Child Custody:

Virginia law requires that children be placed with a person or persons who will promote and protect the child’s best interests. The children are allowed to inform the court of their wishes and the court will follow those wishes if they are reasonable and if the child is sufficiently mature.

Virginia law presumes that parents are the appropriate custodians for their children, but children may be taken from their parents if a court finds that they are unfit or unable to promote and protect the child’s bests interests. Most custody cases involve disputes between the parents. In those cases, the Court will decide what kind of custody arrangement will best promote and protect the child’s best interests. In cases between parents, the court has the following arrangements to choose from.

Shared Custody (or joint physical and legal custody); Each parent has the child approximately half the time. These arrangements can split the time in any way that is feasible for the parents. Shared custody works best where the parents can “get along” with each other and where the parents live near each other. Shared custody usually means that neither parent will receive child support.

Sole custody: One parent has the child most of the time, the other parent has the right to periodic visits with the child. The custodial parent has all authority to make major life decisions for the child. In this arrangement, the parent who does not have custody can be ordered to pay child support to the other parent.

Primary physical custody to one parent, joint legal custody: One parent has the child most of the time, the other parent has the right to periodic visits with the child. Both parents shall consult each other regarding major life decisions for the child.

Child custody orders may be modified whenever there is a change in circumstances that affects the child.

In the jurisdictions where I practice, custody cases typically proceed in the following fashion. Once the petition is filed, the court will set a date for a pretrial conference. The pretrial conference is a short hearing where the judge will ask you and the other parent or party whether or not you have an agreement about custody and if you believe that mediation will be successful. The judge may also appoint a Guardian ad litem.

A Guardian ad litem is a lawyer who represents the best interests of the child(ren). This lawyer's job is to conduct an independent investigation of your case and to make recommendations to the Court about what outcome would be best for the child(ren). The Guardian ad litem is also required to inform the Court of the children's preferences regarding custody or visitation (The Court does not have to follow these preferences, but that are one factor in determining custody and visitation).

At your hearing the judge will hear evidence about which of the two parents will be better able to care for the child and what sort of custody arrangement will best benefit the child. The judge will consider the following factors (found in Virginia Code Section 20-124.3):

  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 family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
  10. Such other factors as the court deems necessary and proper to the determination.

Child Support

Virginia law requires non-custodial parents to pay support to the custodial parent. The Court does not care how the support will be spent or whether or not the non-custodial parent has visitation with the child. The amount of support is determined by a mathematical formula based on both parents’ income. Child support orders may be changed whenever there is a change in the income of either parent. There is no procedure for automatically changing child support. If you are ordered to pay support and you lose your job, or have a cut in pay, and fall behind on the payments; you should immediately notify the Court that you need to change the amount of support. If you do not modify the order, you will be held responsible for making the higher payments. Failure to pay child support WILL result in jail time.