Custody for divorcing parents in Virginia

When parents with children under 18 divorce, Virginia requires court orders for custody, parenting time and child support.

The type of divorce you file for — either no-fault or fault-based — can affect how you get these orders and what they mandate.

What court you go to for custody issues can also have an affect. Most parents request custody orders as part of their divorce case, handled in Circuit Court. Alternatively, they can request custody orders before divorcing by filing a case in Juvenile and Domestic Relations District Court (J&DR).

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No-fault divorce

In a no-fault divorce, the court doesn't legally blame a spouse for ending the marriage.

To file for this, spouses must first live apart for 365 consecutive days, and they must prove the date they separated with the intent of divorcing. Many do this with a sworn statement in their separation agreement (more below). If not, they need other proof, such as texts or emails between them.

When deciding custody in no-fault divorces, judges don't consider a parent's behavior as a spouse, unless there's evidence it harmed the children.

Separation agreement

Parents seeking a no-fault divorce often create a separation agreement to manage custody, parenting time, child support and other issues during the required one-year separation.

At the end of the separation period, parents typically use this notarized contract to file for an uncontested divorce. This asks a judge to make the agreement into a court order and expedites the settlement process.

Attorneys and mediators can help parents negotiate and write an agreement, which includes a parenting time schedule and, often, a parenting plan. Parents can create one on their own, but should have a legal professional review it before signing.

You're not required to have a formal agreement before you separate or file an uncontested case. However, experts highly recommend creating one, especially to set a visitation schedule for the separation period.

If you can't agree on custody, parenting time, or child or spousal support during the separation period, either parent can ask J&DR for these orders instead of waiting to get them in your divorce case.

Separation while living under the same roof

When neither spouse can move out of the family home, you can prove separation while living under the same roof.

To do this, spouses must demonstrate the date they stopped living as a couple. They must show they have separate bedrooms and household responsibilities, don't present themselves publicly as married (including on social media), etc. Tracking each parent's time with the children also helps prove separation.

Corroborating witness

Virginia law requires the plaintiff (whoever files the case) to provide a corroborating witness to verify the separation date and other basic facts of the no-fault divorce.

The witness must be someone over 18 who's known both spouses since before the separation and who's personally observed evidence of it (e.g., visited your home before and after). It can be a friend, family member, religious adviser or even your adult child.

Refer to this sample witness affidavit for the list of questions the corroborating witness must answer.

If you have a settlement hearing or go to trial, the witness answers these questions in court. If your uncontested case is approved without a hearing, the witness signs an affidavit in front of a notary, and you submit it with your settlement paperwork (in most counties).

Fault-based divorce

In a fault-based divorce, a judge determines if a spouse is responsible for the end of the marriage on grounds of adultery, desertion, cruelty or a felony conviction that resulted in a prison sentence of over one year.

The plaintiff has to include evidence of the fault when opening the case. They may need a corroborating witness to confirm the fault by affidavit or by testifying in a hearing or trial. A separation period isn't required.

Fault-based divorces affect how the judge assesses the factors in custody decisions. If a parent is found at fault, the judge automatically considers if the behavior has impacted the children and often decides custody in favor of the other parent.

Deciding which court to ask for custody orders

Judges in both courts make custody decisions based on the children's best interests, whether approving a settlement or issuing a ruling in a trial.

Circuit Court

Many counties, such as Fairfax and Arlington, prefer to handle custody and divorce at once in Circuit Court. However, if you're representing yourself, experts only recommend this if your entire case will be uncontested.

To take this route, include petitions for custody, parenting time and child support orders when you file for divorce.

Keep in mind that you can only appeal Circuit Court orders if misconduct or a legal error occurred during trial. (But you can ask to modify orders from either court if your family has a significant change in circumstances.)

In some Circuit Courts, a commissioner in chancery may oversee your hearings. This is essentially a court referee, whose decisions must be finalized by a judge.

Juvenile and Domestic Relations District Court

When parents file for custody in J&DR, it's often because they can't agree how to parent during the separation period before a no-fault divorce. This court is also commonly used by self-represented parents because of its streamlined processes and free resources, including mediation.

Generally, parents finalize their J&DR custody case before filing for divorce. If both cases are active at once, they usually get combined in Circuit Court.

To request custody in J&DR, parents must be living in separate homes and planning to divorce.

Regardless of where you pursue custody, if your case involves domestic violence, you can request a protective order in J&DR.

J&DR custody orders (from a trial or a settlement) can be appealed for any reason in Circuit Court.

Preparing for a divorce with children

The divorce and custody processes can be overwhelming, even for parents with lawyers. You may need to create a parenting plan, draft multiple parenting time schedules, keep records of interactions with the other parent and more.

The Custody X Change app enables you to do all of that in one place.

With a parenting plan template, customizable parenting time calendars, a parent-to-parent messaging and more, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Take advantage of our technology to stay on top of all the moving parts of your case.

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