Conozca la Ley: Virginia
ACTUALIZADA 19 de septiembre, 2009
Below is state-specific information about custody in Virginia.
- Definitions
- Basic information
- Who can get custody and visitation
- The custody process
- Steps for filing for custody
- After an order is in place
- Child support
Basic information
arribaWhat are the pros and cons of getting a custody order?
Getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- The right to make decisions about your child
- The right to have physical custody of your child (to have your child live with you)
Also, your legal rights without a custody order may depend on whether or not you are married to the other parent. For more information, see Who has custody if there is no custody order in place?
However, there are reasons people choose not to get a custody order from a court:
- Some parents decide not to get a custody order because they don’t want to get the courts involved, and have an informal agreement that works well for them.
- Some parents may think going to court will make the other parent mad, or they are worried that the court may award custody or visitation to the other parent. If you have concerns, you may want to talk to a lawyer or a local domestic violence advocate to get more information and help in figuring out what is the best decision for you. You can find links and contact information for resources in your area on our VA State and Local Programs page and the VA Finding a Lawyer page. You can also Contact Us to discuss your situation further.
Child support considerations: Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. See Who can get child support? for more details.
We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the VA Finding a Lawyer page.
arribaWho has custody if there is no custody order in place?
It depends. If you are married and have not gotten a custody order, both you and your spouse automatically share custody of your child. This means that both you and your spouse have the right to make major decisions about your child’s life, and the right to care for your child and have the child live with you.*
If you are not married, and there is no custody order in place:
- The mother has custody of the child when the child is born.*1
- In order for the father to establish a legal relationship with the child, he will have to establish what is called paternity (legal fatherhood). This can be established by:
- A blood test or a DNA test which is at least 98% accurate; OR
- A voluntary written statement (called an Acknowledgement of Paternity "AOP" form) signed by the father and the mother under oath, which acknowledges that the man is the father of the child and that he understands the responsibilities he will have in regards to supporting the child.*2 The most convenient place to sign the AOP form is in the hospital right after the child is born. It is a free service provided by all hospitals in VA. The AOP form can also be signed at the Office of Vital Statistics in Richmond, local departments of social services, and local child support offices.*3
- The mother or child (once the child is older) can also file a motion to establish paternity in court (this is generally done if the birth father refuses to acknowledge paternity). A mother or child may want to do this in order to obtain a child support order or inheritance rights. If the father refused to acknowledge that he is the father in court, the judge may order the father to take a DNA test.*4
If paternity has been established by one of the ways described above, and you are not married:
- The mother still has custody of the child as long as she is living with the child and taking care of the child, until a court says otherwise.
- However, a father can file a motion to get custody of the child as the child’s natural father.*5 The court may award custody at that point to either the mother, the father or to both in a joint custody order.
*1 Va. Code Ann. § 20-49.1(A); See Taylor v. Com., 537 S.E.2d 592, 595 (Va. 2000)
*2 Va. Code Ann. § 20-49.1(B)
*3 VA Department of Social Services, http://www.dss.virginia.gov/pub/pdf/dcse_paternity.pdf
*4 See Va. Code Ann. § 20-49.4
*5 See Va. Code Ann. §16.1-278.15(B)
arribaShould I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you probably don't have much to lose by asking that the visits be supervised.
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the great majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the father on a few visits or the visits might be supervised by a relative for a few months -- and if there are no obvious problems, the visits will likely become unsupervised. Oftentimes, the father ends up with more frequent and/ or longer visits than he had before you went into court. He may even end up with joint custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out if that is best in your situation, please go to Finding a Lawyer to seek out legal advice.