Virginia Divorce FAQ’s – Parenting

This is about custody and visitation after divorce in Virginia, including the effect on custody and visitation of misconduct of the parents, mental health of the parents, and the rights of grandparents in Virginia.

This information is from Wayne E. Comer, the Divorcinfo Network Lawyer for Virginia. You can click here to visit his web site.

How does custody get decided as between a parent and a third party?

A parent is the court preferred custodian. A third party has the burden to prove by clear and convincing evidence that the parent or parents are unfit and/or incompetent.

How does custody get decided as between parents?

As between parents the primary issue is how is the welfare of the infant best served. The fact that one parent desperately desires custody carries little or no weight alongside the issue of the best interests of the infant. In theory, there is no preference as between mother and father but, in practice, we see custody going most often to the mother when the age of the infant is less than five years of age. Unless there is a divorce pending, custody will be decided in the General District Court in the county where the child is domiciled. A parent who is in a position to devote full time to care of the infant offspring usually has an advantage over a parent who works full time if other factors are equally balanced.

What’s the terminology for custody?

Virginia law recognizes three basic categories of custody: 1. Sole custody 2. Joint custody (this specifies the place of “primary residence” of the infant. 3. Shared custody (a primary residence need not be specified).

Is there a presumption in favor of not changing custody arrangements?

Virginia law has a preference for maintaining the existing home arrangements of an infant, providing the status quo is not coerced and is bone fide. Example: where a parent used misrepresentation or fraud to cause the infants residence to be with him or her, there would be no preference given.

What effect does the misconduct of one of the parents have on custody?

Under the current case law, misconduct of the parent is not considered relevant unless it demonstrates in some way that the infant will be adversely affected. For example there are cases where one parent has committed adultery after separation, but it was ruled that the circumstances were such as not to impact on the welfare of the infant whose custody was in question. There are lower court rulings that this result will be obtained even if the act is committed in the infant’s home, providing that the infants are not aware of it and not specifically affected by it. This case law changed what had been the rule in this Commonwealth not too many years ago.

What effect does the mental health of one of the parents have on custody?

The mental health of a parent who seeking a decree of custody is a factor carrying much weight depending on the type of illness and other circumstances. We are aware of one lower court ruling where the mother had been diagnosed with fairly severe schizophrenia, but she was living with the infant’s competent maternal grandmother who assisted in caring for the infant. This mother won custody.

What effect does the preference of the child have on custody?

There is a substantial conflict of opinion on this question and the case law appears to be in a state of flux. In practice, the answer will rest in large part on the discretion of an individual judge who is in a position to evaluate the situation on a fact to face basis. In our opinion, if a child in mentally very normal and a qualified psychologist favors giving some weight to the preference of a child of about seven years of age, the judge might go along. However, this will never be the decisive factor. As a practical matter, a court might feel that if an “infant” is sixteen or seventeen years of age, he or she is going to end up with the parent of choice regardless of the ruling.

How does visitation get set?

Initially, it usually is the subject of a “pendente lite” (temporary) court order. The judge of the court has a great deal of discretion is setting the terms of visitation whether temporary or otherwise.

Is there such a thing as “standard visitation”? If so, what is it?

A non custodial parent who is of decent character and not in default of any existing court order will usually get something like every other weekend to have the child with him plus two or three weeks in summer when the school is not in session. That parent, however, may not take the child across state lines without prior consent of the custodial parent and sometimes an order of the court is required.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

I would not call it “standard”. This depends a lot upon how the child came to be in the “foreign” state. If there was a compelling and highly justifiable reason for the non custodial parent to be in another state, the court would be sympathetic and the visitation provisions would be fairly generous, as for example, when the non-custodial parent resides in the state of “last cohabitation” and the custodial parent has moved.  In some other and different circumstances the court would be more restrictive.

What rules govern cases where the custodial parent wants to move away with the children?

No answer.

What visitation rights do grandparents have, if any?

A recent Virginia case has put a further damper on the rights which the Legislature had apparently granted. There is a rather heavy burden upon the grandparent to plead and demonstrate that the child would actually suffer if grandparent visitation was not achieved. If the custodial parent has remarried, it seems to put the custodial parent in an even stronger position vis a vis the grandparent.

Other issues in Virginia:

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