If you are a parent who is going through a divorce or child custody/visitation proceeding in Virginia, you may have questions about how a Virginia Court will decide custody of your child and what the term “custody’ actually entails. When it comes to custody of your child, a Virginia Court is most concerned about the welfare of your child, which parent they will live with, and who gets to make the important decisions regarding your child’s welfare.

In Virginia, there are two forms of custody: Legal Custody and Physical Custody.

Who gets legal custody of the child determines who gets to make important decisions regarding your child’s well being. 

Physical custody on the other hand determines with which parent the child will primarily live.

In Virginia, legal custody can be awarded solely to one parent or jointly to both the parents. Joint legal custody means that both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child. It is very common in Virginia for a court to award joint legal custody so both the parents can be involved in important decisions in their child’s life. Unless the Court sees evidence that Parents are utterly unable to work together to co-parent and decide what is best for their child or that one parent is an unfit parent, it will usually grant joint legal custody. 

A Court may award joint legal custody to both the parents and award physical custody to one parent, with the other parent receiving visitation with the child. In Virginia the standard visitation schedule for a non-custodial parent is every alternate Friday after school until Sunday evening, and one day a week during the week that the non-custodial parent doesn’t have the child on the weekend. 

The Court may also decide that the parents can have shared physical custody of the child, where the child will spend a significant amount of time with both parents. This can range from the child spending equal time with both parents on a week on/week off basis, a 2/2/3 day schedule alternated between parents, to one parent having custodial time every alternate weekend from Thursday through Monday. 

Virginia Courts also try to provide quality time with the child to each parent during summer vacation and winter break as well as Thanksgiving and spring break. 

In making the custody determination, the Court has to consider what is in the best interest of the child. In order to determine what is in the best interest of a child, the Court takes various factors into account (outlined by VA Code Section 20-124.3). Factors considered by the court in determining the best interest of the child include age and physical and mental health of the parents, age of the child, the existing relationship between each parent and the child, the needs of the child, the role played by each parent in the child’s upbringing and care, the Child’s wishes (if of sufficient age, intelligence and maturity) and the ability of each parent to foster a strong relationship between the child and the non-custodial parent. The Court also considers the ability of each parent to resolve any dispute regarding the child. 

Both legal and physical custody, as well as visitation orders can be modified by showing that a material change in circumstances has occurred since the original determination which warrants a change in custody.