Custody issues can confront people in many different circumstances. Perhaps a custody issue has arisen due to a divorce or maybe two unmarried parents have to decide on which parent will have custody of the child. Regardless of the situation, custody is always a difficult and emotional issue that is rarely solved in one trip to court.  One of the most important things to remember regarding custody in Virginia is that the law considers a court’s ruling on custody to be modifiable based on a material change in circumstances.  Permitting modification of the custody order allows parents the opportunity to petition the court to make changes to the Order when a significant change has occurred in their lives and family dynamic.  Below are some answers to questions that you probably have if you find yourself facing a custody issue:

“What court hears custody disputes?”

Depending on the situation surrounding your custody dispute, either the Juvenile and Domestic Relations District Court or the Circuit court will have jurisdiction over your case.  If the custody issue has arisen from a divorce proceeding then typically the issue will be dealt with in circuit court and if it has arisen outside a divorce, it will be dealt with in juvenile court.  

“What is the difference between physical and legal custody and what types of custody arrangements are there?”

Physical custody determines which parent the child will reside with.  Legal custody awards a parent or parents the right to have physical custody of the child, to determine and redetermine where and with whom the child shall live, the right and duty to protect, train and discipline the child and to provide the child with food, shelter, education and ordinary medical care.There are several different custody arrangements but the most typical arrangement is where one parent has the physical custody of the child, both parents share joint legal custody of the child and the non-custodial parent has visitation rights with the child.  This arrangement is probably the most typical because it provides stability for the child vs. the child moving back and forth from one house to another.  It also allows the non-custodial parent to spend quality time with the child and participate in decision making.  However, many parents and their children are able to thrive in other custody arrangements such as joint physical and legal custody where the child spends their time equally between both parents.  This type of custody arrangement could have varying schedules, maybe the child stays with their mother Sunday through Wednesday and with their Father Wednesday through Saturday or the child simply alternates each week with the parents. 

"How does the Court determine what the custody arrangement will be?”

The Court is required to look at what is in the best interests of the child or children.  In order to decide what is in the child’s best interest they must consider the following factors:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

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

3. The relationship existing between each parent and each child, giving due consideration 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;

4. 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;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. 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;

7. 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;

8. 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;

9. Any history of family abuse as that term is defined in § 16.1-228. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.