Virginia, sadly, has been the site of many battles throughout our nation’s history. From the 1610 Anglo-Powhatan Wars through the Revolutionary and Civil Wars, our mighty state has seen a lot of clashes. It troubles us as attorneys that conflicts over child custody are routinely described as “battles.” A Virginia judge may, in fact, gauge your merit in a custody dispute based on your attitude toward the disagreement itself.

The Best Interests of the Child Are Center Stage in Virginia

In any custody conflict, the child or children will always occupy center stage. A Virginia judge is bound by law to consider the best interests of the child in determining which parent will have physical custody. The Code of Virginia spells it out, in § 20-124.2:

  1. In determining custody, the court shall give primary consideration to the best interests of the child.

Not much in legalese is plain, but that sentence could be no plainer. Your wants and wishes are of little importance in a child custody hearing. Arguing, for example, that you love your kids will make little impression on a judge. Demonstrating that you have a three-bedroom home with furnished bedrooms for little Brian and Brianna will make a better impression.

Children are dramatic little creatures. Drama has little place in real courtrooms, so appealing on emotional grounds for custody is not effective. Neither will it be effective for your ex-wife, if she cannot back up any emotional currency with real, financial currency. You each have to demonstrate that you are capable of caring for your children in their best interests, not so they can be an emotional comfort to you.

How Stable Are You and Your Home?

A judge looks at the stability of each party. The same section of Code of Virginia goes on to state, “As between the parents, there shall be no presumption or inference of law in favor of either.” This is meant to counter what has traditionally been called the “tender years doctrine,” meaning courts deferred to the mother in awarding custody of small children. Your Virginia judge is obligated to view you as equally worthy of caring for Brian and Brianna whether they are 18 months or 18 years old.

To earn the judge’s consideration, you have to demonstrate exactly how you will support the best interests of your children at any age. This is literally spelled out in Code of Virginia § 20-124.3. We will give you the Reader’s Digest condensed version here. The court is expected to consider:

  • Your children’s ages, physical and mental condition, and developmental needs
  • Your age, physical and mental condition
  • Your children’s relationships with you, your ex-wife, other family members and friends
  • Your history of interaction with your own child
  • The likelihood you will continue to support your child’s growth and development
  • Your degree of support for maintaining the mother-child relationship
  • How you and your ex-wife each work to resolve disputes
  • Any family history of abuse or neglect

… But there are Two Whammies in Custody Cases

The Code concludes its long list with two whammies. A Virginia judge can solicit the opinions of the children themselves, if they are believed to be old enough and mature enough to understand what they are being asked. Do not worry too much about this, though. No judge is simply going to ask, “You love your Mommy more, don’t you?” A less leading question will be followed up with inquiries as to why your child holds that opinion:

“If you could live only with Daddy or only with Mommy, who would you want to live with?”
“Why would you want to live with Mommy?”
“Because on the ride over here Dad pestered me to fasten my seat belt and now I’m going to be mad at him forever.”

A judge will rightly look past that as an immature reaction unrelated to the larger question.

The second whammy is not so easily dismissed. The law says the judge may consider “Such other factors as the court deems necessary and proper to the determination.” This gives a very wide latitude to the judge to weigh just about anything in your behavior, past, or financial arrangements in determining what is best for your children.

Simple Questions, Simple Answers

A judge wants simple answers to basic questions about protecting your children:

  1. Will they have a safe home in which to live?
  2. Will you feed them nutritious food three times a day?
  3. Will you clothe them appropriately?
  4. Do you emotionally support them, in age-appropriate ways?
  5. How will you handle work-home conflicts?
  6. Who was the primary caregiver before the divorce?

A few situations are very nearly deal breakers. If you have a history of child abuse or neglect, domestic violence, illegal drug use, or arrests for public intoxication, that history will never work in your favor.

How’s Your Financial Situation

Nobody expects you to suddenly lavish your children with a new home, new clothes, live-in chef and such. Virginia’s average per capita personal income in 2016 was $53,723, according to the state government; you may be above or below that. Your financial situation does not work against you if you can demonstrate steady income, prudent spending habits, and dedication to putting the needs of your children first.

In addition to all the financial and domestic considerations, a judge will also view your courtroom behavior and attitude toward ex-wife in determining custody. Your choice to treat the dispute either as a battle or as a way to provide the best future for your children will be duly noted by an astute judge.

By calling 757-383-9184, you schedule a consultation with a men’s rights attorney at The Firm for Men, or you may contact us online. For your convenience, we have offices in Virginia Beach and Newport News, just a short drive from anywhere in Hampton Roads. We can help take some of the stress and fear out of any custody conflict. We want what you want: what is best for your children.

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