Child Custody in Virginia
Child custody deals with the relationship between the parent and child where the child is under the care, control, and protection by the parent or legal guardian. Child custody arrangements typically apply to divorced or divorcing parents and unmarried parents.
Types of Child Custody in Virginia
Temporary Custody
Temporary custody is a custody order from the court that determines who has custody of the child while the custody case is pending trial. One can initiate a custody action by filing a Motion for Pendente Lite or temporary custody. The court will award temporary custody based on the best interests of the child, and the award of temporary custody does not control the ultimate determination of custody.
Joint Custody
A joint custody order can be a joint legal custody, joint physical custody, or a combination of joint legal custody and joint physical custody; as long as the court determines that this would serve the best interests of the child.
Joint legal custody orders provide that both parents share the responsibility for the care and control of the child and have a joint authority to make important decisions for the child. The child would have one primary home. A legal custody order gives the parent the right to make important daily decisions for the child, such as education, religion, health, and welfare.
Joint physical custody or shared physical custody provides that both parents share physical and custodial care of the child. The child would have two primary homes, but would spend the majority portion with one parent.
The combination of joint legal custody and joint physical custody includes a special joint custody agreement between the parents.
To ensure that the joint custody agreement serves the best interests of the child, the court must consider the parents’ ability to discuss and reach decisions that affect the child’s well-bring. The court will also consider the parents’ willingness to share custody, parental fitness, the child’s relationships with the parents, the child’s preferences, the parent’s ability to maintain a stable life for the child, the distance between the parents’ homes, the parents’ employment, the age and number of children, and the parents’ finances.
Sole Custody
A sole custody order can be sole legal custody or sole physical custody. Sole custody is when one parent, the custodial parent, has both legal and physical custody. The custodial parent would be primarily responsible for the care and control of the child and has the main authority to make important decisions for the child.
Sole legal custody provides the custodial parent with the right to make all legal decisions for the child without permission for the other parent, known as the noncustodial parent. However, a court order may provide that the custodial parent speak with the noncustodial parent before making a decision, but ultimately, the custodial parent makes the final decision, even if the other parent disagrees.
Sole physical custody provides that the child lives primarily with the custodial parent, who has the authority to make decisions regarding the child’s daily needs. The child would only have one primary home.
Split Custody
A split custody order involves a custody arrangement where there are two children involved and each parent has full custody over one child. Before approving this arrangement, the court will consider the age of the children as well as the children’s preferences.
Child Support Laws in Virginia
Virginia, like every state in the United States, has in place child support enforcement programs. Virginia requires that any parent of a minor child must pay child support until the child turns 18 years old. In addition to child support payments, the noncustodial parent may be responsible for the children’s health coverage.
The court will order child support payments for a child over 18 years old if the child is: (1) a full-time high school student; (2) not self-supporting; and (3) currently living with the parent seeking or receiving child support until the child turns 19 years old or graduates from high school, whichever happens first.
Additionally, the court may order child support payments for a child over 18 years old if: the child is: (1) severely or permanently mentally or physically disabled; (2) unable to live independently and support oneself; (3) lives with the parent who is seeking or receiving child support payments. The parents may also agree to an extended support obligation if approved and confirmed by the court.
Child support payments are determined by the amount of the parent’s monthly gross income and the number of children for whom the parents share joint legal responsibility and for whom support is being sought. Using these numbers, the child support payments is determined using a schedule set by the State. The presumptive minimum child support payment is $65 per month which is given to parents who is unable to pay child support due to insufficient funds and who is institutionalized in a psychiatric facility, imprisoned for life without change for parole, and medically verified as completely and permanently disabled.
According to the schedule set by the State, a parent with a gross monthly income between $10,000 and $20,000 would pay the following percentage: 3.1% for one child, 5.1% for two children, 6.8% for three children, 7.8% for four children, 8.8% for five children, and 9.5% for six children.
A parent with a monthly gross monthly income between $20,000 and $50,000 would pay the following percentage: 2% for one child, 3.5% for two children, 5% for three children, 6% for four children, 6.9% for five children, and 7.8% for six children.
A parent with a monthly gross monthly income over $50,000 would pay the following percentage: 3% for one child, 5.5% for two children, 8% for three children, 10% for four children, 11.9% for five children, and 13.8% for six children.
Virginia law has set aside various ways to determine the total monthly child support obligation for sole custody support, split custody support, and shared custody support. Additionally, child support payments can be automatically garnished from the noncustodial parent’s earnings every month. The garnished payments would then be sent to the Virginia Department of Social Services that verifies the payments and sends to the custodial parents.
Procedural Process to Obtaining Child Custody in Virginia
A parent's fundamental right may not be interfered with without due process of law. This involves the right to a trial on the issues raised by the petition, the right to confront and cross-examine witnesses, and the right to force the attendance of witnesses.
Child custody laws in Virginia apply when Virginia is the home state for both the child and the parent, where the child lived in the State within the last six months, the child and one of the parents have significant connection within the State, the child is less than 6 months old and has lived in the State since birth, or the child is physically in the State.
To obtain child custody, a petition for custody must be filed with the family court. The filer must be a parent, grandparent, or any other person with a legitimate interest. The parent seeking custody must have a copy of the petition and a notice of the hearing delivered to the other parent. The court will hold a hearing unless the other parent does not contest to sole custody.
Most courts send parents to mediation before trial. The court may suggest mediation to handle initial proceedings, modifications, and contempt actions. Mediation is an opportunity for parents to reach a custody agreement or resolve any custody or visitation disputes. Mediation is voluntary and confidential, and allows parents to discuss non-legal issues such as the child’s living and care arrangements and how to handle future disputes. If there is a history of abuse, mediation will not be appropriate.
If an agreement is reached, the agreement will be sent to the court for review and approval and issues a formal court order. If an agreement cannot be reached, the court will set a hearing where both parents present evidence and witnesses. At the end of the hearing, the court will grant custody with the child’s best interests in mind.
Generally, the parents hire a lawyer or represent themselves. However, in special circumstances, the court can appoint a lawyer free of cost.
Visitation Rights in Virginia
Visitation rights are granted to the noncustodial parent in order to foster a relationship between the noncustodial parent and the child. The noncustodial parent does not have any right or authority to make important legal decisions for the child. Noncustodial parents are allowed to visit their children with the consent and agreement by the primary parent. If no visitation agreement can be reached, the court will set a visitation schedule. Under this schedule, the noncustodial parent would be able to have visits every other weekend, one month and two summers in the summer, and alternating holidays.
Visits can be supervised or unsupervised. Supervised visits are when the noncustodial parent can only visit the child with another person present. The parents agree as to who will be a part of the supervised visits. Usually, this person is a friend or a family relative. Supervised visits are limited to a specific time and place.
Child Custody Decisions in Virginia
The court determines custody based on the child’s best interest and do not favor one parent over the other. The court encourages frequent and continuing contact with both parents and that parents share in parenting responsibilities. While the court focuses on the primary parent-child relationship, the court may award custody or visitation to any other person with a legitimate interest as long as it serves the best interests of the child. The court may order an independent mental health or psychological evaluation to determine the best interests of the child. The court may grant joint custody or sole custody.
The ultimate goal of the court is to serve the best interests of the child. To make this determination, the court makes the following considerations:
· The age and physical and mental condition of the child;
· The age and physical and mental condition of each parent;
· The relationship existing between each parent and each child, and the ability of each parent to meet the emotional and physical needs of the child;
· The needs of the child, including other important relationships in the child’s life such as siblings, friends, and other family relatives;
· The role that each parent has played in the child’s life, and the role each parent will play in the future;
· The likelihood that a parent will actively support the child’s relationship with the other parent, which includes looking at whether a parent has denied the other parent access to the child in the past, without good reason for doing so;
· The willingness and ability of each parent to maintain a close and continuing relationship with the child;
· The ability of each parent to cooperate with the other parent in resolving disputes regarding matters that affect the child;
· The preference of the child, if the child is old enough to understand and express such a preference;
· Any history of family abuse or sexual abuse; and
· Any other factors the court feels is necessary and proper in order to make a decision about custody.
Modification of Child Custody Order in Virginia
If there is a change in cost of living or finances such as job loss, and inability to work and make child support payments, the noncustodial parent can file a modification petition with a Virginia family court to adjust or modify child support payments. Once a petition is filed, the parent seeking modification must show the court that there was a substantial change in circumstances and modification would serve the child’s best interests.
When determining modification of custody, the court considers remarriage of one of the parents, death of one of the parents, and criminal acts by one of the parents. Additionally, the court has the discretion to change custody based a parent’s intentional withholding of visitation from the other parent, constituting a material change in circumstances.
Noncompliance with Child Custody Order in Virginia
When the noncustodial parent has failed to comply with a child custody order, Virginia law requires that the custodial parent first demand the return of the child. If the visiting parent does not return the child within 48 hours, the visiting parent faces the following criminal charges. If the visiting parent is within the State, the punishment is a misdemeanor offense and will be either fined $25 or jailed up to 30 days. If the visiting parent leaves the state, the punishment is a felony offense and can be fined $250 to $1000 and/or jailed from 30 days to a year.
An exception is if the child is in clear and present danger, requiring saving from the noncustodial parent. The noncustodial parent must prove this danger and file a petition within 96 hours. Both parents should hire a lawyer.
For child support obligations, the custodial parent can sue the noncustodial parent for overdue child support. Other consequences of failure to stay current on child support payments include taking funds from income tax returns, liens being placed on the noncustodial parent’s personal or real estate properties, submission of overdue payments to major consumer credit reporting agencies, seizure of any financial assets, and suspension of the driver’s license and any occupational licenses. If these efforts are useless, the noncustodial parent can be found in contempt and would be jailed for up to 12 months.
Grant of Joint Custody in Virginia
The courts in Virginia prefer joint custody agreements and will allow joint custody if it is in the best interests of the child and the parents agree and are willing to cooperate and work together. Joint custody is often encouraged, unless the parents cannot reach an agreement. When no agreement can be reached, the court will determine the best interests of the child. Using its discretion, the court may award joint custody, even if the parents do not agree.
Custodial Parent Wants to Move from Virginia
If the custodial parent wants to move and relocate where the distance is relatively small, there is no need for a modification of an existing custody or visitation order. Under certain circumstances, the custodial parent may have to give advanced notice of the relocation.
If the custodial parent wants to relocate outside Virginia, the courts will consider a modification if warranted. The custodial parent should work with the noncustodial parent to reach an agreement in this circumstance. If there is no agreement, the custodial parent must petition the court to allow the move. The court has the power to approve the move or bar the custodial parent from moving the child, as long as the best interest of the child are served.
When making this determination, the court considers the best interests of the child, the reason for the move, the moving parent’s plan at the new location, and the effect of the move on the child’s well-bring. Most states also consider the advantages of the move, the custodial parent’s motives, the child’s desires, the child’s relationships with relatives and the community, the noncustodial’s motives, the ability of the custodial parent to comply with substitute visitation orders, the feasibility of sufficient visitation to maintain the noncustodial parent’s relationship, and any other restrictions.
Generally, most courts are hesitant to grant such a motion due to concerns that such a move will affect the child’s relationship with the noncustodial parent.
Child’s Decision in Virginia
The child’s choice is a factor considered by the courts when awarding custody. Generally, the older the child is, the more weight the court will give to the child’s choice. The court will generally be more receptive when the child is at least 11 years old.
Grandparent Custody Rights in Virginia
In Virginia, the court may grant custody or visitation to any party with a legitimate interest, including grandparents. Adoption of the child cuts off the grandparents’ rights unless the adopting party is a step-parent. While the courts are presumptively favorable to primary parents of the child, the courts will award custody or visitation rights to any other person with a legitimate person so long as the child’s best interests are served.
