The Virginia Courts detail the factors according to the Virginia Code which judges must consider in reviewing and deciding plans for parents’ parenting time with their children. These factors include:
- The age and physical and mental condition of the child, giving due thought to the child’s changing developmental needs;
- The age, physical, and mental condition of each parent;
- The relationship between each parent and each child, giving due thought to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
- The needs of the child, giving due thought 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 tendency 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 willingness and demonstrated the ability of each parent to maintain a close and continuing relationship with the child, the ability of each parent to cooperate to resolve disputes about matters affecting the child; and
- 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.
Moreover, if you already have a court order for custody, visitation, or support, the court will only consider a modification to that order if there has been a “material change of circumstances” since the last order was entered. When this has been proven, the court will order a change if the evidence shows a change is in the child’s best interest.
Furthermore, in any custody or visitation order, the court is mandated to consider first and foremost the child’s best interest. The court can appoint a Guardian Ad Litem (GAL) to represent the child’s best interest before the court. Costs associated with the Guardian Ad Litem will be determined by the court to the parties and depends upon their ability to pay.
What Are the Best Interests of the Child Standard?
The child’s best standard is the primary way of determining cases concerning children in family law. Typically, the judges follow a set of factors for each case. The best interest of the child test means that the courts are required to balance the ability of each parent to meet the needs of the child or children.
The court will determine child custody based on the best interest of the child test by examining several factors. It is not common that one factor solely will decide custody. Instead, courts will make a finding on custody based on the totality of the factors.
Priority in custody disputes is typically granted to the parent who is first awarded custody, either by the court or by voluntary agreement between the parents. For instance, if the other parent leaves the home and you raise the child for some time without the other parent’s presence in the home, the court would weigh the stability of keeping the child in the home, instead of changing custody to the other parent.
Next is the child care arrangements. In most situations, both parents have to work, and priority may be provided to the parent who has better child care arrangements. For example, if the other parent has significantly better child care arrangements than you, this factor may affect a custody arrangement;
Another factor is who is considered the primary caretaker. Priority in custody issues may be given to the parent who was the primary caretaker of the child before the divorce or separation. For instance, while you and the other parent resided in the same household if the other parent spent the majority of their time taking care of the child while you worked or did other activities, the other parent, as the primary caretaker, would be more likely to be awarded custody.
Furthermore, the courts also examine any issues regarding drugs and alcohol. For instance, evidence of drug and alcohol misuse can impact the award of custody, with the parent who has a substance abuse problem being less likely to receive custody.
Another factor commonly evaluated is the state of the mental health of the parents. For example, untreated mental illness, personality disorders, emotional instability, and/or poor parenting may affect a custody award, with the parent who is suffering from those conditions being less likely to be granted custody.
Furthermore, the physical health of the parent is considered a factor. Severe physical illness/disability that greatly affects one parent’s ability to care for the child may affect a custody award, with the parent suffering from such a condition being less likely to receive custody.
Additionally, courts consider if there has been any spousal abuse. Evidence that one parent has committed domestic violence against the other parent, especially in the presence of the child, will affect a custody award, with the parent who committed such acts against the other parent being less likely to receive custody.
Another factor is any Abuse, Neglect, Abandonment, and Interference with visitation rights. If one parent causes abuse, neglect, or abandonment to the child, this will affect custody. Also, evidence that one parent has significantly interfered with the visitation rights of the other parent may cause that parent to lose custody.
Moreover, the courts examine the child’s preference as well. A child’s preference to live with one parent may be taken into consideration, depending on the age of the child. The closer the child is to 18 years old, the more weight the court will give to the child’s desires. However, the court will closely evaluate the reasons why the child prefers to live with the other parent.
For instance, if the child prefers to live with a parent who is not disciplining the child and who does not set appropriate boundaries for the child, then the court may find that it would not be in the child’s best interest to live with that parent.
Another crucial factor is the financial health of each parent. Courts will determine which parent can provide financially for the child. For instance, if one parent is unable to afford a house, then this may harm giving custody to that parent.
Moreover, the courts also take note of the conditions in the home environment: Courts do not want to place a child in a dangerous or unhealthy household. For example, if one parent’s household poses dangers for the child, such as a new partner that is violent, frequent parties at the home, or dangerous items kept in the home, this could impact their custody decision.
Another important factor is educational opportunities. Suppose one parent can offer the child much better educational opportunities, such as an exceptional school or a school that meets the child’s special needs. In such a case, this may affect custody, with the parent who is better able to meet the child’s academic needs being granted custody.
Furthermore, the courts will look at where the child’s siblings live. The courts generally prefer to keep siblings together whenever possible. If the child has siblings or half-siblings living with one parent, this may impact whether that parent receives custody.
Lastly, the court’s observations of the parents. Courts will also determine the parents’ behavior in court and are more likely to grant custody to the parent who will encourage the child to build a relationship with the other parent. In addition, the court may also consider any other factor that might impact the best interests of the child.
When Do I Need to Contact a Lawyer?
If you reside in Virginia and are facing child custody issues it may be useful to seek out a local Virginia child custody attorney to guide you through the process.