Virginia’s divorce proceedings unfold in Circuit Courts. When settling issues of child custody, parenting time schedules, and child support, the Commonwealth’s network of Juvenile and Domestic Relations District Courts (JDRDC) oversees matters. Working with your family law attorney, you can successfully navigate the murky waters of legal custody in Virginia.

Two Primary Types of Custody

Custody comes down to us from the Latin “custos,” which you can recognize in words like custodian and custodial, all relating to “guardian” or “protector.” In Virginia family law, two types of custody are spelled out:

  1. Physical custody—the child is under the physical care and supervision of a parent, guardian, or “person with a legitimate interest” such as a grandparent, step-parent, or other family member
  2. Legal custody—decisions regarding the child’s best educational, religious, and medical interests are made by one or both parents

Your final divorce decree will include determinations of child custody, including physical and legal custody. That means your attorney presents information to the Circuit Court judge to sway a decision in your favor for you to have physical custody, legal custody, or both.

Appeals, and modifications to the final divorce decree that involve your children are handled through the JDRDC with jurisdiction.

Sole, Joint & Shared Custody

You and your ex have options on the two types of custody, as spelled out in Code of Virginia § 20-124.1. One of your children’s parents can have:

Both parents can be responsible for the children in two ways:

  1. Joint Custody—“Joint custody” means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
  2. Shared Custody—Parents try to reach the ideal of 50 percent custody for each parent

Determining Legal Custody

Ah, we once again get to dust off one of the most frequently used phrases in Virginia family law: Best Interest of the Child. A Circuit Court judge does not simply look at you, look at your ex, and then give one of you the nod.

The judge is under a legal mandate spelled out in § 20-124.2:

In determining custody, the court shall give primary consideration to the best interests of the child. The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. (our emphasis added)

A judge weighs many factors (all itemized in § 20-124.3) in deciding which parent should make decisions on behalf of the children. A quick summary of the major points:

  • Keep It—the judge will usually try to avoid disrupting the child’s educational, social, and religious life by maintaining the child’s status quo
  • Primary—the parent who has served as primary caregiver, with a history of making decisions affecting school, physical and mental health, and religious upbringing, has the advantage in gaining legal custody
  • Parent-child bond—The judge will contemplate the bonds between child and each parent; evidence from court-appointed professionals may be used in determining the depth and breadth of this bond
  • Whaddya Think, Kid?—From 20-124.3, “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,”

Proving Your Case

If you are pursuing sole legal custody of your children, gather evidence that you have made decisions regarding your child’s schooling, religious upbringing, and medical concerns. Your attorney can seek out affidavits from teachers, daycare workers, your minister or Sunday School teacher, and your child’s doctors.

Consider, too, the benefit of joint legal custody. Decisions regarding your child may need to be made in emergencies. If you both have legal custody, your ex can make split-second decisions to protect the health and safety of your child when your child is not in your care. This is especially useful if you share custody or you, physically, are the non-custodial parent.

From simple questions to complex custody concerns, at The Firm For Men can help. Contact us today or telephone us at (757) 383-9184. We proudly assist Virginia’s men in all aspects of child custody.