Virginia Child Custody and Parenting Time Overview

Virginia courts make custody, parenting time and child support decisions to ensure children's safety, health and well-being. Courts also seek to maintain children's relationships with each parent, when appropriate.

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Types of custody

Legal custody refers to parents' responsibility for their children, including the right to make decisions regarding their health, education, activities, religious participation and overall welfare. Provisions for how parents share decision-making and other legal custody issues are often detailed in a parenting plan.

Physical custody refers to whom children live and spend time with. In Virginia, physical custody is often called parenting time or visitation and is explained in a required parenting time schedule. When a parent poses a risk to their children's safety (e.g., in cases with violence or substance abuse), the court can order supervised visitation.

Common custody arrangements

Virginia courts prefer joint legal custody and joint physical custody, in which parents share decision-making and divide parenting time about equally.

However, it's common for children to live with one parent more than the other. The parent with more time, called the custodial parent, has primary physical custody. The other is called the noncustodial parent. These terms typically refer to the physical arrangement only — parents often still share joint legal custody.

Other custody arrangements

In certain circumstances, the courts might order one of Virginia's less common custody arrangements: sole, split, nesting or third-party custody. Parents can agree on one of these arrangements.

Getting custody orders

A parent requests custody orders by filing a case.

Parents who aren't married to each other file in Juvenile and Domestic Relations District Court (J&DR). Other parents usually handle custody within their divorce case, filed in Circuit Court. However, they might file a custody case in J&DR if they can't agree how to co-parent during the separation period before a no-fault divorce.

In an uncontested case, parents agree to settle from the start of legal proceedings.

In a contested case, parents ask the court to rule on disputed issues. Courts may encourage parents in these cases to settle by making them try an alternative dispute resolution method, such as a judicial settlement conference or mediation.

Whenever parents reach a settlement, they need court approval. If parents can't reach a complete agreement, a judge decides any unresolved issues in a trial.

Paternity

When an unmarried woman gives birth, she has sole custody of the child. Either parent can ask J&DR Court to change this, but a judge can't rule until paternity is confirmed.

Unmarried parents often confirm paternity by signing a notarized Acknowledgement of Paternity. Many do this when their child is born in order to put the father's name on the birth certificate, but parents can file the form with the Department of Health at any time. Include a copy when you open your custody case.

If a parent won't sign the form, paternity must be confirmed with DNA tests. When both parents agree to it, they can use low-cost paternity testing from the Virginia government. Usually these parents wait until they have results to open a custody case.

If parents can't agree to sign the acknowledgement form or do DNA testing, either one can open a custody case and file a Motion for Genetic Testing. If the judge approves the motion, DNA testing is required by court order.

Factors in custody decisions: Children's interests and preferences

Whether issuing orders in a settlement or a trial, courts use the same factors to determine what's in the children's best interests. Among other things, they look at the children's:

  • Relationships with each parent
  • Relationships with siblings, extended family and peers
  • Physical and mental conditions
  • Ages and developmental stages

The courts also assesses each parent's:

  • Ability to meet the children's emotional, intellectual and physical needs
  • Involvement in the children's lives and plans for future involvement
  • Likeliness to support the other parent's relationships with the children
  • Willingness to work with the other parent to resolve parenting disputes
  • History of allowing the other parent reasonable time with the children
  • Age, physical health and mental condition
  • Convictions of domestic violence or abuse (or allegations against them)

Virginia courts also consider the preferences of children who have the maturity and knowledge to form reasonable opinions (determined by the court). Judges generally give more weight to the preferences of older kids. However, children can't officially choose which parent to live with, regardless of age.

Children's thoughts often get communicated to the court by a guardian ad litem or through reports from a custody evaluation. Judges may also interview children in their office with a court reporter and, possibly, parents' lawyers present. Children rarely testify in open court.

Judges have broad leeway to consider other factors they deem relevant.

Length of proceedings

The amount of time from filing a case to receiving final orders depends on your case and your court.

When parents agree on everything, they can have their settlement approved in as little as six to eight weeks. If a case goes to trial, it can take six months to over a year to finalize.

Costs to expect

Attorney fees are the most significant costs for parents litigating custody, and they can vary widely. In cases that go all the way to trial, each parent often pays around $15,000 to attorneys. More complex cases can cost them each $50,000 or more.

Many attorneys offer a set price to handle uncontested cases. This can range from $700 to $3,000.

If you can't afford a lawyer, you may qualify for free or low-cost legal advice and representation through your local legal aid office.

Often, parents choose to hire a private mediator before or after they file a case. These mediators generally charge between $250 and $500 an hour. Parenting coordinators charge similar rates. Both types of professionals can save parents money by helping them reach a settlement quickly.

Fees to open a case vary by court and type of case; they tend to total between $25 and $200. Other possible court costs include fees for court-ordered evaluations or a guardian ad litem requested by a parent. Parents who can't afford court fees can apply for a fee waiver.

Representing yourself

Many parents go through the custody process without a lawyer, making them pro se. However, the law, paperwork and court procedures can be highly confusing, so self-representation is only advised in straightforward, uncontested cases.

If you choose to go this route, take advantage of resources for representing yourself and prepare as thoroughly as a lawyer would. Review Chapter 6.1 of the Virginia legal code and have a law professional look over your paperwork.

When both parents represent themselves, some J&DR Courts automatically appoint a guardian ad litem (GAL) — a lawyer to represent the children and conduct a custody investigation. Keep in mind that the GAL only represents the children and doesn't give parents legal advice.

Staying organized

The process of deciding custody and parenting time requires serious organization. You may need to create a parenting plan, draft parenting time schedules, calculate expenses, negotiate with the other parent and beyond.

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

With a parenting plan template, parenting time calendars, an expenses tracker, a secure messaging center and more, Custody X Change makes sure you're prepared for whatever arises in your journey to custody.

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

Custody X Change is software that creates customizable parenting plans and schedules.

Make My Virginia Plan Now

Custody X Change is software that creates customizable parenting plans and schedules.

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