Child custody is a fraught, frightening, frustrating part of parting ways with the other parent. Kids are your flesh and blood. You and your children’s mother must decide who gets whom. If you and the other parent cannot agree on child custody, the decision will be made by a Virginia judge through custody hearings, starting with a status hearing.

Jump to a Section

Married and Unmarried Parents in Virginia

Virginia accommodates two categories of parents in custody issues:

  1. Married parents
  2. Unmarried parents

Unmarried parents do not enjoy the same legal rights as married parents in Virginia. Both categories of parents may have to appear for first custody hearings, also known as status hearings.

Two unmarried Virginians can, obviously, produce kids. The courts deal with child custody of unmarried couples in Juvenile and Domestic Relations (J&DR) Courts.

Two married people in Virginia can also produce children. Legally married parents are either married or divorced; no such thing as “legally separated” exists in Virginia. The courts deal with married parents, through divorce in Circuit Courts.

For married parents during separation and before the final divorce decree, the two parties work with their respective attorneys to create a property settlement agreement. That agreement includes child custody.

Unmarried parents without any existing contract are not legally entitled to payments for child support, spousal support, or equitable distribution of property. All they can ask of a court is to determine child custody and visitation, starting at a first custody hearing.

Property Settlement Agreements

If you subscribe to the notion that children are not property, you will be happy to know the property settlement agreement goes by other, more humane names:

  • Marital agreement
  • Marital separation agreement
  • Collaborative Settlement Agreement
  • Marital Settlement Agreement
  • Mediated Separation Agreement
  • Separation Agreement

Whatever you call it, the paper irons out the five main areas of contention between Virginia adults wanting to part ways:

  1. Spousal support
  2. Equitable property division
  3. Child support
  4. Parenting time
  5. Child custody

The first three topics only apply to married couples. Unmarried parents without a written agreement in place at the time of their separation cannot petition a court for so-called “palimony,” child support, debt distribution, or asset division.

The only things unmarried parents can legally ask about are child custody and visitation. This is done in J&DR Court. They can prepare a written settlement dealing only with child custody and visitation.

No Custody Agreement? See You in Court

If you and your departing spouse cannot decide on a child custody plan, you will be leaving such decisions in the capable (if dispassionate) hands of a Virginia judge.

Your matter will be before either a Circuit Court judge or a J&DR judge in the jurisdiction in which the children live. Typically, a Circuit Court judge determines child custody or approves the property settlement agreement including child custody during the divorce proceedings.

Unmarried parents, or a married couple wanting to determine custody after the divorce, will present their case in J&DR Court. For both unmarried parents and married couples, J&DR court is the place to reconcile contested child custody issues.

Child Custody in Virginia

Virginia’s courts tell us child custody is the “care, control, and maintenance of a child.” The term generally applies to:

  • Joint legal custody — 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.
  • Joint physical custody — Both parents share physical and custodial care of the child
  • Sole custody — A parent has the primary responsibility for the care of the child, making all the daily decisions about the child’s life.

Married or unmarried parents quickly learn how unimportant their wishes are in the eyes of the Commonwealth. Every Virginia law crafted about child custody places the “best interests of the child” above any considerations for the adults.

Code of Virginia § 20-124.2, “Court-ordered custody and visitation arrangements,” guides judges in all courts when considering placement of a child. The second section of the law states,

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

Some parents bristle at the directives a J&DR or Circuit Court judge may give, since most parents think of themselves as experts on their own kids. But a judge is not interested in soothing adult feelings; the law requires the child’s needs supersede the adults’ needs.

Most attorneys brace their clients for this rude awakening before custody hearings. In a way, presenting a custody case to a judge is already an admission that the two parents were not mature enough or selfless enough to make a hard decision in the best interests of their child.

Asking for a judge’s intercession is effectively saying, “We cannot decide this, so we will ask you to decide, and we will accept what you say.”

Custody Hearings

Custody and visitation hearings exist to make clear to all parties (parents and children) what custody arrangements will be in the best interests of the child. The Virginia Court system puts it succinctly:

Custody hearings are necessary when parents do not live together and cannot agree on what is best for their children, when a parent cannot take care of his/her children, or when someone believes a child is in danger from a parent.

Fortunately for Virginia and the kids, most unmarried and married parents are capable of caring for their children and are not deliberately endangering them. Usually, custody hearings arise because two adults clash over who is better for their kids.

The behavior of the children is almost never the reason for a custody hearing.

How Will the First Custody Hearing Go?

Knowing some of the reasons custody hearings exist — a deficit in mature parenting rather than any problem with the children themselves — you can prepare for your first hearing by working to put yourself on the strongest possible footing.

The first and possibly most important Pro Tip:

  • Do Not Argue — not with the judge, the other parent, your attorney, the other parent’s attorney — not nobody not no how. 

Accept a judge’s directives silently. You and your attorney can review and discuss everything later, in private, if you need to vent.

If married or unmarried parents have some kind of written settlement in place, the presiding judge will review and approve — or disapprove — of the settlement.

If a written settlement does not exist and parents disagree about custody, the judge will schedule further hearings. Know your schedule for the next three to six months since the court calendar takes precedence over your calendar.

Judges often appoint a guardian ad litem or GAL to represent your child, and often make the appointment at the initial hearing. The GAL may be charged with thoroughly investigating both parents. Do not be offended. Repeat in your head, “best interests of the child.”

You may be given a chance to present your arguments to the court, but you are not in a trial. You are not defending yourself. You are stating your wishes (in the best interest of your child) regarding custody and visitation.

Be brief, to the point, and clear. State your child-centered goals (“I would like to leave here today knowing my children are safe and properly cared for, and I feel I am the right person to ensure that”). Then be quiet. Do not ramble, do not become emotional, and do not make your argument about you.

The judge can issue all kinds of directives to both parents, to the attorneys, and to an appointed GAL. In that status hearing, you may be ordered by a judge to take parenting classes. Either say nothing or say, “Yes, your honor.”

You could be ordered to return with evidence such as medical costs, school records, extracurricular activities involving you, or support for your claims against the other parent (substance abuse, unfit parent, negligent).

Your Attorney’s Job During the First Custody Hearing

Throughout that first, nerve-wracking status hearing, your attorney will be with you. Take all your cues from your attorney. Usually your attorney will ask you to be silent but will alert you when you are to speak to the court. A lot is on the line at the first custody hearing:

Your attorney is your strongest, wisest ally. Your emotions and unthinking words can be costly. A thoughtless comment could mean you do not gain custody or have limited visitation.

Let your attorney handle the routine business of the hearing. You will be under the judge’s scrutiny the entire time. Always turn first to your attorney for guidance and support.

The Firm For Men stands ready to represent you, a married or unmarried Virginia parent, in your child custody issue. We work exclusively with men to preserve their rights and support their children. Contact us online today or call us at our Virginia Beach office at (757) 383-9184 to set up a first consultation.