Divorce is never easy for separating spouses, but it can be even more difficult for minor children. Kids are often shaken by the reality of their parents living apart, unsure where they will live or what their future will look like. If you are beginning divorce proceedings, it is vital that you know the laws regarding child custody and prepare to make your case for your parental rights in court.
What Kinds of Child Custody Are There?
Custody types in divorce cases may include:
- Sole custody. Sole custody means that one of the parents has the major role in the physical, emotional, and moral upbringing of the child. This parent is referred to as the custodial parent. The custodial parent is obligated and has the right to make all decisions concerning the child, who lives primarily with this parent.
- Joint custody. Joint custody is defined in Virginia Code Section 20-124.1:(i) Joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) Joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the Court deems to be in the best interest of the child.
How Is Child Custody Decided in Virginia?
Virginia family courts recognize the hardships placed on children in a divorce, and look to provide living situations that will provide assurance and stability in the period following separation. The primary factor in awarding custody is which parent, environment, and arrangement is in the best interests of the child.
The judge is required to consider a list of factors before deciding on custody, including:
- The child's specific needs. The best party for physical custody will depend on the child's age, physical condition, mental health, and changing developmental needs.
- Each parent's demographics. Factors that can influence a judge's decision include a parent's age, physical and mental health, living situation, and lifestyle.
- The existing parental relationship with the child. Due consideration will be given to each parent's current ability to meet the child's emotional, intellectual, and physical needs, as well as the willingness of each parent to maintain a close and continuing relationship with the child.
- The child's familial bonds. Judges should consider the important relationships of the child, such as bonds with siblings, half-siblings, peers, and extended family members.
- The child's preferences. Judges may consider the child's own wishes regarding custody if the child is of reasonable age, intelligence, understanding, or experience.
- Past behavior of each parent. The judge must consider the role each parent has played in providing care and positive involvement in the child's life, as well as any history of physical or sexual abuse suffered by the child at the hands of a relative.
- The relationship between the parents. Custody may be awarded to the parent who is more likely to work collaboratively with a co-parent on disputes involving the child, who actively supports the child's contact and relationship with a co-parent, who has not unreasonably denied a co-parent access to or visitation with the child in the past.
- Other relevant matters. Parents may bring certain matters to a judge if they are relevant, necessary, and proper in the decision to award custody to one or both parties.
What Are My Parental Visitation Rights?
Visitation preserves the child-parent relationship, ensuring that a non-custodial parent spends adequate and meaningful bonding time with the child. Under Virginia law, visitation arrangements:
- Do not depend on payment of child support
- Should allow minor children frequent and continuing contact with parents when appropriate
- Should respect each parent's dignity and resources
- May be granted to grandparents, stepparents, blood relatives, and other "persons with a legitimate interest"
- Require parents who wish to move out of state to provide the other parent (and grandparents with visitation rights) 30 days advance written notice of an intent to relocate
Do I Have to Pay Child Support?
In most cases, the non-custodial parent of a minor will be ordered to pay child support. The amount of support payments is based on a formula that considers childcare costs as well as potential contributions to the child's welfare. Factors that may be used to calculate child support include both parents' incomes, the number of children, child(ren)s health insurance costs, childcare costs, and support payments made by another parent for a previous marriage.
Can Custody and Child Support Determinations Be Modified in the Future?
It may be possible to change certain factors in a custody arrangement, including the custodial parent, amount of child support, visitation rights, and spousal support awards. However, these are typically only granted if one or both parents' life circumstances have changed significantly since the initial custody decision was made.
In order to petition the court to modify an existing order, you must be able to demonstrate that you or your ex-spouse has seen a material change in circumstances and that the proposed change is in the best interests of the child.
Some examples of a material change in circumstances could include:
- Financial changes. A considerable increase or decrease in household income can affect a parent's responsibilities toward the child. For example, a reduction in shared expenses (such as daycare) could be grounds to modify the amount of child support, while an ex-spouse's unemployment could increase the need for spousal support payments.
- Relocation. If an employment opportunity or personal relationship requires a parent to move out of state, the parent must petition the court to modify custody and visitation orders. The court will hold a hearing to determine if the move is in the child's best interest.
- A child's age. A custody order created when a child is a toddler may not be appropriate when they reach teenage years. The court may consider changes to an existing custody plan to reflect a child's changing needs and development.
You Need James Short on Your Side in a Custody Case
No matter what your goals are, James Short works tenaciously to get the agreement you want. Don't leave something as important as your child's future up to the court! Call or contact our office today to learn your next steps.