Virginia Custody Process and Factors

When parents separate or divorce in Virginia, one of the most emotionally charged issues is child custody. Virginia courts prioritize the best interests of the child, and understanding the legal process can help parents feel more confident and prepared.  Although it is a shame, custody can often become an adversarial process when one parent is being unreasonable or uncooperative. If this is the case, having an attorney help you through the process can greatly improve your lives, and the lives of the children you care about.

Custody refers to the care, control, and maintenance of a child. In any custody dispute the court’s decision is guided largely by what best serves the child’s interests. There are several types of custody in Virginia, including: joint legal custody in which both parents share responsibility for the care and control of the child and jointly make decisions regarding the child’s upbringing; joint physical custody in which both parents share physical custody, meaning the child resides with each parent for a significant period of time; and sole custody in which one parent has primary responsibility for the child’s care and makes decisions for the child. 

In Virginia, custody matters are initially handled by the Juvenile and Domestic Relations District Courts (JDR) in the county where the child resides. Married parents must live in separate homes to file for custody in JDC Court. Unmarried parents must establish paternity before filing for custody. Either parent can initiate a custody case by filing with the JDR Court Service Unit. If the parents cannot agree on custody or parenting time during the case, one parent can file a motion for temporary custody. If safety is a concern, a protective order may also be requested at this stage. 

To officially notify the other parent in the case, you must serve them with copies of the initial paperwork. They may file their own request in response. If they make their own request to the court in response to the paperwork or at the initial hearing, the case is considered contested. Some Virginia counties require parents in contested custody cases to attend a mediation orientation, which introduces the option of resolving disputes outside of court. 

After filing your case, the court schedules an initial hearing – which can often be several months in the future. If the parents reach a settlement before the hearing, the judge will review it during the initial hearing. As long as the agreement serves the child’s best interests, the court will approve and finalize it at the hearing.

The discovery process - where both parties exchange personal information and evidence they are preparing for trial - continues throughout the case and typically ends a few weeks before trial. This step is important for preparing arguments and understanding the other party’s position. Properly serving and answering discovery is an area that will critically affect your claims and defenses at a trial.

Not all custody cases require an investigation or evaluation. However, if the court appoints a Guardian ad Litem to represent the child, the Guardian will investigate both parents’ living situations and relationships with the child. In cases where each parent challenges the other’s ability to serve the child's best interests, the court may order an evaluation where a child custody or mental health expert assesses the case and makes recommendations. 

If the parties cannot resolve their disputes, the case proceeds to trial. At trial, both sides present evidence and question witnesses. The judge considers all arguments, along with any findings from investigations or evaluations. The judge may announce a decision at the end of the trial or take additional time to consider the case. Once a ruling is made, the judge issues a final order outlining the terms of custody. If either parent is dissatisfied with the outcome, they may appeal the decision to the Circuit Court. Appeals must be filed within 10 days of the final order. 

Virginia Code § 20-124.3 outlines the specific factors that judges must consider when determining the best interest of a child in custody decisions: 

1) The age and physical and mental condition of the child.

2) The age and physical and mental condition of each parent.

3) The relationship between each parent and each child.

4) The needs of the child.

5) The role each parent has played and will play in the future of the child.

6) How much each parent supports the child’s contact and relationship with the other parent.

7) The willingness and ability of each parent to maintain a close relationship with the child.

8) The reasonable preference of the child.

9) Any history of abuse.

10) Any other relevant factors. 

Child custody can be complex, but having an experienced attorney can help you understand the process and provide you with someone who can advocate for your children and yourself.

If you find yourself in need of guidance regarding your custody order, the family law attorneys at Ambler Law Offices, LLC are here to help guide you through each step of the process. Call today to schedule a consultation at (540) 550-4236.  Consultations for Custody Cases are typically handled in-person, and typically require payment for at least one hour of attorney time.

The above information is general information only and is not intended to provide legal advice.