Virginia Child Custody and Modification of Custody Orders

June 04, 2011

Virginia judges have traditionally used sole-custody as the primary arrangement when determining child custody between unmarried parents or after divorce. However, joint custody orders are becoming more common; in fact, until a custody arrangement is determined, both parents are considered to have equal right to the children. Judges analyze several factors when making child-custody determinations in Virginia, and a significant change in any of the factors may be grounds for modifying a child custody order.

Virginia Child Custody Arrangements

Sole custody is the most common type of child-custody arrangement in Virginia. With sole custody, one parent -- the custodial parent -- has 100 percent custody of the child. The other, noncustodial parent may have visitation rights, which can range from brief, supervised visits with the child to regular overnight stays.

A split-custody arrangement is similar to sole custody but involves more than one child. Custody of the children is split between the parents, so one child may live with the mother while another lives with the father, for example. Visitation for the non-custodial parent may be granted with split custody.

Joint custody is an increasingly common child-custody arrangement where custody is shared between a child's parents. In Virginia, joint custody means:
- Both parents have legal responsibility for the care and control of the child as well as the authority to make decisions concerning the child, even if the child primarily resides with only one parent,
- Both parents share physical custody of the child and have joint decision-making authority, or
-Legal and physical custody of the child is shared between the parents in any combination that a judge deems in the best interest of the child.

Regardless of the custody arrangement, Virginia judges are legally bound to consider the best interests of the child when making custody decisions.

A Closer Look at the Best Interests of the Child

Virginia's child-custody laws are designed to ensure a child's frequent contact with both parents, if appropriate, and to encourage joint responsibility for child rearing among both parents.

There is no presumption that one parent is a better candidate for custody based on his or her gender. In addition, when clear and convincing evidence shows that living with either parent would not serve the best interests of the child, custody may be awarded to another person with a legitimate interest in raising the child, such as a grandparent or other family member.

Factors for Determining the Best Interests of the Child

Several statutory factors are analyzed when deciding the type of child custody that fits the best interests of the child. When analyzing factors, judges consider the individual facts and circumstances of each child and parent.

As stated in the Code of Virginia, the factors judges must consider when determining custody or visitation arrangements include:
- The age and physical and mental condition of the child, considering his or her developmental needs
- The age and physical and mental condition of each parent or person with a legitimate interest in child custody or visitation
- The existing relationship between the child and each parent and the parents' ability to accurately assess and meet the emotional, intellectual and physical needs of the child
- The needs of the child, considering important relationships with siblings, family members and peers
- Each parent's past and future roles in the upbringing and care of the child
- Each parent's willingness to actively support the child's relationship with the other parent, including any past unreasonable interference with access or visitation
- Each parent's willingness and ability to maintain a close relationship with the child and to cooperate with the other parent in decisions and disputes affecting the child
- The preference of the child if the child is of reasonable age, intelligence, understanding and experience to express a reasonable preference
- Any history of family or sexual abuse

These factors are analyzed in addition to any other factors a judge deems necessary and proper to determine the child-custody arrangement that suits the best interests of the child.

Child-Custody Modification

Virginia judges retain jurisdiction over child-custody matters until the child reaches age 18 (or older, in some cases). Therefore, judges have the authority to modify a child-custody order if a change in circumstances affects the type of custody that meets the child's best interests.

In general, the person seeking to modify child custody must demonstrate a change in circumstances that makes modification appropriate. Based on the Supreme Court of Virginia case Keel v. Keel, two questions are considered when contemplating modifying a child-custody order:
- Has there been a change in circumstances since the most recent custody order?
- Would a change be in the best interest of the child?

When addressing these questions, judges consider both positive and negative changes in the circumstances of each parent and the child. Importantly, even if circumstances have changed, child-custody modification will only occur if the requested change is demonstrated to fit the child's best interests.

If you have questions about child custody or modifying a child-custody order in Virginia, contact a knowledgeable attorney with experience in child custody matters.

Article provided by Cravens & Noll PC
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