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
Who can get custody and visitation
arribaWho can seek custody? Can a grandparent, step-parent, or other relative get custody?
Generally, both parents are entitled to seek sole or joint custody from the court. However, if the parents are unmarried, the father must first establish paternity before seeking legal custody of his child.* See Who has custody if there is no custody order in place? for information on how to establish paternity.
Non-parents who are "persons with a legitimate interest" may also be able to seek custody or visitation of a minor child.** A person with a legitimate interest includes, but is not limited to:
- Grandparents;
- Step-parents;
- Former step-parents;
- Blood relatives and other family members; and
- Any other person who has a similar relationship with the child, and the court determines that s/he has a legitimate interest in the child.***
* Va. Code Ann §§ 20-49.1; 31.1
** Va. Code Ann. § 20-124.2(B)
*** Va. Code Ann. § 20-124.1
arribaI am the child's grandparent. Can I get visitation?
What you will have to prove in court to get visitation depends on whether both parents object to you having visitation or just one parent objects.
Both parents object
If the natural parents are considered fit and they both do not want you to visit with the child, you will have to show the court that your grandchild’s health and welfare will be actually harmed if you are denied visitation. It is not enough to show that it would hurt YOU if you were denied visitation. You have to show that the child would actually be harmed if the court didn’t let the child visit with you and that visitation is in the child's best interests.*
One parent objects
However, if only one parent objects to you having visitation and the other parent wants you to visit with the child, you do not have to prove that the child will be actually harmed. You will only have to show that it is in your grandchild’s best interest to visit with you.**
* Williams v. Williams, 501 S.E.2d 417, 418 (Va. 1998)
** Yopp v. Hodges, 598 S.E.2d 760, 765 (Va. App. 2004)
arribaCan a parent who committed violence get custody?
Maybe. When making a decision about custody or visitation, the judge must take into account any history of family abuse or sexual abuse.* “Family abuse” is when a family or household member uses violence, force or a threat against you, which results in bodily injury or makes you afraid that bodily injury will occur.**
However, this does not mean that the parent who committed abuse will automatically be denied custody; it just means that the judge has to consider the abuse in addition to other relevant facts. If the judge does decide to grant visitation to the abuser, you can ask that the visitation be supervised in order to better protect yourself and your child.
There are certain circumstances, however, under which a parent who committed violence can be denied the chance to ask for custody or visitation. You can ask the court to prohibit the abuser from filing a petition for custody or visitation for up to 10 years if the court finds that:
- it is in the best interests of the child and
- the abuser was convicted of committing one of the following crimes against his child, any child who lived with him at the time of the crime, or against the child's other parent:
- murder or attempted murder;
- voluntary manslaughter or attempted voluntary manslaughter; or
- conspiracy or solicitation to commit any of the above crimes offense OR
- the abuser was convicted of committing one of the following crimes against his child or a child who lived with him at the time of the crime:
- felony assault that resulted in serious physical injury; or
- felony sexual assault.***
** Va. Code Ann. § 16.1-228
*** Va. Code Ann. § 20-124.2(E)
arribaCan I get temporary custody if I have a protective order against the other parent?
Yes. As part of your protective order, the judge can award you temporary custody of your child, which would last until the protective order expires.* For more information on protective orders, please see VA Protective Orders for Family Abuse.
* Va. Code Ann. § 16.1-279.1(A)(8)