You child means the world to you, so it?s understandable that you have questions and concerns when it comes to your rights as a parent. Child custody and visitation issues can arise in many situations, and Virginia law is strict regarding all of them. Matters involving minor children are also unique in the sense that emotions are a central factor, more so than in other legal proceedings. Under such circumstances, retaining a skilled child custody lawyer is crucial.
At Lugar Law PC, our attorneys recognize that there?s a lot at stake in cases involving care, access, and decision-making for your children. We?re here to provide the legal support you need as you try to do what?s best for your family. Please contact our Roanoke, VA office to set up a consultation with a child custody lawyer who can explain how these cases work. Call us at (540) 384-0348 or use our online form.
Overview of Virginia Custody Laws
In general, custody refers to your legal rights and responsibilities as a parent when you?re raising children in one of four scenarios:
- You were never married to the child?s other parent;
- You?re currently married but living separately; or,
- You?ve filed for divorce and are currently going through the process.
- You are divorced and never had a custody order or wish to change the previous custody order
There?s a common misconception that custody means where the child lives full time, but the term encompasses much more. Under Virginia law, child custody involves a wide array of tasks involved with raising the child, such as providing care, guidance, comfort, food, shelter, and other basic life necessities. In addition, custody includes making important decisions regarding the child?s:
- Religious upbringing;
- Travel and entertainment;
- Health care;
- Extracurricular activities; and,
- Much more.
Though the concept often arises in the context of divorce proceedings, there are also child custody laws for unmarried parents. A father has just as much right to participate in raising the child, making key decisions, and providing guidance and care. However, you don?t have these custody-related rights if you weren?t married at the time of the child?s birth. Instead, you must first establish paternity as described in more detail below.
Custody and Visitation
Any overview on issues related to a minor child requires a description of Virginia child visitation laws, since the two concepts are so closely interconnected. Though a child custody and visitation lawyer can explain in more detail, but generally, visitation relates to a parent?s right to spend time with the child. Public policy favors the child having a relationship with both parents. When one parent has some form of custody as a primary caretaker, a court will typically allow the other parent liberal visitation rights. As with custody, fathers who have established legal paternity also have child visitation rights.
The arrangement is usually based upon a designated schedule or formula, taking into account weekends, weeknights, school breaks, holidays, birthdays, and other occasions. There are some exceptions where visitation would be inappropriate, such as:
- Where one parent has a criminal history that could put the child at risk;
- If a parent abuses drugs or alcohol to the extent that it?s not possible to take proper care of the child during visitation periods;
- There has been physical abuse in the past;
- There?s an imminent threat of violence or physical harm to the child; or
- Alienation by one parent of the other to the child.
Note that a parent may still have the right to visitation despite the presence of these factors, but a court may order supervised visitation to ensure the safety of the child.
The Child?s Best Interests Standard
Virginial law requires that all arrangements involving child custody and visitation must be determined in accord with the child?s best interests. Though parents may have certain rights related to custody and visitation, they are subject to this standard. There are 10 specific factors listed in the statute on the child?s best interests, but they generally include:
- The child?s age, physical condition, and mental capabilities, currently and as they may change with the child?s development;
- Each parent?s age and capabilities, both physically and mentally;
- The relationship each parent has with the child, including the level of involvement and ability to address the child?s needs;
- The child?s needs, which may include assessment of other relationships with siblings, family, friends, and others who have an influence in the child?s life;
- The extent to which each parent has participated in raising and caring for the child, in the past and as proposed for the future;
- The child?s wishes, if appropriate based upon age, intelligence, and understanding regarding custody and visitation arrangements; and,
- Other considerations the judge believes that it?s appropriate and necessary to address.
In addition, there are multiple factors listed in the statute with regard to how each parent may approach child custody and visitation. The court will look to how willing the parents are to support each other in maintaining a strong relationship with the child. Another issue is each parent?s capabilities and willingness to resolve parenting disputes in a positive, productive way. Conduct that contravenes these factors may affect a judge?s assessment of the child?s best interests, such as where one parent:
- Interferes with custody;
- Disrupts visitation or doesn?t stick to the schedule;
- Constantly disparages the other; or,
- Is unwilling to cooperate on custody and visitation matters.
Of course, application of the child?s best interests standard will depend upon whether there?s any history of domestic or sexual abuse. The judge will disregard the above factors if there?s evidence of misconduct.
Types of Child Custody
There are many terms used to describe different types of custody, but only certain ones have legal effect. Other languages may be used colloquially, so you should get clarification from your child custody attorney if you have questions. The key definitions to keep in mind as they affect your custody and visitation rights as a parent:
Legal Versus Physical Custody: Legal custody is the authority to make decisions regarding important aspects of the child?s life. It?s a power you maintain regardless of whether your child is physically under your control at any given moment.
Physical custody refers to where your child lives on a regular basis, which is why it?s sometimes called residential custody. On its own, physical custody doesn?t provide you with key decision-making authority, but you can make decisions that are immediately necessary. If you don?t have physical custody, you more than likely will be entitled to visitation.
Joint Versus Sole Custody: Joint custody means that you and the child?s other parent share legal and physical custody. You equally participate in important decision-making and are both entitled to physical custody. For practical purposes, shared or joint physical custody doesn?t necessarily mean that you split your time and access exactly 50-50.
In a sole custody arrangement, only one parent has physical custody and the power to make key decisions. For this reason, it?s sometimes called full custody. The other can seek visitation but doesn?t have any authority regarding legal or physical custody.
Other Custody Terms: Depending on the circumstances, you may also encounter additional types of custody, including:
- Emergency custody, when you?re faced with an urgent situation and need custody to ensure the safety of your child;
- Temporary custody, which may apply while a divorce is pending and before a final determination on permanent custody; and,
- Split custody, where custody of multiple children may be divided between the parents. Such an arrangement is generally disfavored unless it meets the best interests of all children.
Agreements Regarding Custody and Visitation
Many people envision a packed courtroom, intense cross-examination, tears, and emotional outbursts when they think about child custody and visitation matters. In truth, many parents are able to compromise on these issues and enter into an agreement as to how they raise their children. If you?re on relatively good terms with the child?s other parent, this is the preferred approach. Through an agreement, you can avoid the costs and strain of protracted litigation and leaving the decision on time with your child to a total stranger (the Judge).
Despite this, it?s still critical to consult with an experienced lawyer for child custody agreements. There are multiple reasons why working with an attorney is essential:
- You have rights as a parent, but you put them at risk by trying to go it alone.
- You protect your relationship with your child when you have a skilled legal advocate to advise you through negotiations and executing the agreement.
- The judge overseeing a child visitation and custody matters will still have to review the agreement to ensure it complies with the child?s best interests standard. Your efforts could be wasted if you don?t take the statutory factors into account.
Oftentimes, lawyers are best to assist in determining what is most informative for the court to know and what is most relevant in making a decision on how to share time with your child do to having handled so many cases.
Court Proceedings Involving Child Custody and Visitation
If you can?t come to an agreement regarding custody and visitation for your children, it may be necessary to bring these issues before the court. For parents going through divorce proceedings, care and support for minor children will be a central issue in the case. However, there are many other situations where a judge is called upon to make a decision.
Paternity and Child Custody: As mentioned, Virginia has enacted child custody laws for unmarried parents. If you?re a father who wants to be involved in your child?s life, you must go through paternity proceedings before you can file for child custody. There are two ways to establish paternity:
- You and the child?s mother execute a Voluntary Acknowledgement of Paternity; or,
- You prove you?re the biological parent through a paternity case in court, which usually involves DNA testing.
Motion to Amend Custody in Virginia: Even after custody and visitation have already been decided, these issues may come up in the future. A change in circumstances may require you to file a motion to amend custody, such as the need to relocate for a job, family, or health reasons. Alternatively, you may be on the other side of the matter and want to fight the motion.
Just as a child custody lawyer can provide advice and counsel when you?re trying to come to an agreement, you need solid legal representation when these matters come before the court. Custody and visitation cases are complicated, involving complex statutory laws and procedural rules.
Discuss Your Situation with an Experienced Child Custody Lawyer in Roanoke, VA
If you?re currently involved in a child custody or visitation matter, qualified legal assistance is essential. You need a knowledgeable attorney on your side when working on an agreement with your child?s other parent. In court proceedings, skilled representation is critical to protecting your rights. For more information on how we can help, please call Lugar Law PC at (540) 384-0348 or use our online contact form. We can schedule a consultation to explain your options regarding child custody and visitation under Virginia law.