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Factors a Virginia court considers when determining child custody issues

Perhaps the most emotional aspect of a divorce or separation is deciding which parent or other individual will take custody of the children. It is generally easier on the family for parents to reach an agreement without court intervention, but sometimes that simply is not possible. If no agreement between the parents can be reached, a court will conduct an evidentiary hearing and decide the dispute for the parents. The appropriate court in which to be heard depends on the circumstances of each case. For example, juvenile and domestic relations courts are fit to hear cases involving a child whose custody or visitation is a subject of controversy or requires determination. However, Virginia circuit courts are also fit to hear custody and visitation cases in conjunction with other issues, such as dissolution of marriage. Because the determination of appropriate jurisdiction can be difficult and because the determination is so important, it is recommended that the advice of an attorney is sought prior to bringing a custody suit in any Virginia court.

In Virginia, all judicial decisions regarding a child's custody or visitation will be guided by the "best interests" of the child, as determined by a judge according to pre-set legal standards set forth in the Virginia Code. These standards include:

The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
The age and physical and mental condition of each parent;
The relationship existing between each parent and each child;
The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
The role that each parent has played and will play in the future, in the upbringing and care of the child;
The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
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;
Any history of family abuse as defined by Virginia law or sexual abuse; and
Such other factors as the court deems necessary and proper to the determination.

Following its balancing of the above factors, a court will determine what type of custody arrangement is in each child's best interests. The Virginia Code defines only sole custody and joint custody and authorizes the court to award either of the two. Sole Custody means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child. Joint Custody can refer to several types of custody arrangements, including joint legal custody (where both parents retain authority to make decisions concerning the child) and joint physical custody (where both parents share physical and custodial care of the child).