Know the Laws: Virginia
UPDATED October 2, 2012
Below is state-specific information about custody in Virginia.
It depends. Most of the time, after one or both parents file for custody in court, the parents (possibly with their attorneys) will come to some sort of agreement about child custody. If they can agree, the judge will review that agreement and, under most circumstances, turn it into a formal court order.
Sometimes, parents cannot come to an agreement. In that case, a judge might order the parents into mediation, where a mediator tries to get you and the other parent to come to an agreement.* If you are afraid of the other parent, or there is a history of family abuse, be sure to tell this to the judge since mediation may likely not be appropriate. For more information, see What is mediation and who pays for it?
A judge may also order that the parents attend a seminar or program that addresses the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities. The fee charged for participation in such program cannot be more than $50 but the exact amount charged will be based on the parent's ability to pay.**
If the parents still cannot agree, or the judge does not order mediation, then there is a trial where both parents can present evidence and witnesses to strengthen their case. There may be one hearing date or a series of hearings. At the end of the trial, the judge will decide who will get custody and what other terms will go into the custody order. If you think that your case is headed for trial, we strongly suggest that you get a lawyer to represent you. Custody cases can be complicated and it is often best to have someone in court by your side, who can help you through the process. See our VA Finding a Lawyer page for more information on how to find a lawyer in VA.
* Va. Code Ann. § 20-124.4
** Va. Code Ann. §§ 16.1-278.15(A); 20-103(A)
A judge will make a decision about custody based on what s/he thinks is in your child’s best interest.* The judge will look at any factor that s/he thinks is important in making this decision. Some of the things a judge will look at include:
Maybe. The judge will take into consideration the role that each parent has played in the child’s life, and the willingness of each parent to maintain a close and continuing relationship with the child.* If you have moved away from your child for a significant period of time, it may affect how the judge views these two factors.
However, it is important to remember that a judge will take into account a history of family abuse and sexual abuse.** Therefore, if you have moved away to escape abuse, you can explain to the judge why it was necessary for you to leave the home where your child currently lives. You may strongly consider getting a lawyer in this situation. Go to VA Finding a Lawyer for more information.
* Va. Code Ann. § 20-124.3(5) & (7)
** Va. Code Ann. § 20-124.3(9)
A fee of $25 is generally required for filing either a custody or visitation petition in court.* There may be an additional fee for serving the other parent with the custody papers, which is usually done by a sheriff, third party, or process server.
If you cannot afford the filing fee, you may be able to have the fee waived. Under Virginia law, if you are unable to afford the fees and costs related to your case because you have a low-income, a court can order that you don’t have to pay.** You can ask the clerk of court for more information about how to do this when you file your petition.
* Va. Code Ann. § 16.1-69.48:5
** Va. Code Ann. § 17.1-606
You do not need a lawyer to file for custody. However, it is highly recommended that you get a lawyer if you can, especially if the other parent has one. Custody cases can be complicated, and it is helpful to have someone guide you through the process.
If you cannot afford a lawyer, you may be able to find free or low-cost legal help in your area on the VA Finding a Lawyer page.
If you plan to file for custody on your own, you may want to visit the VA Legal Aid website, which provides more information about custody laws and how to file for custody in VA.
Even if you plan on representing yourself, you may want to consider having a lawyer review your papers before you file them. Avoiding mistakes as much as possible will help to save time and money, and can improve your chances of success.
Generally, you can file for custody in Virginia only if Virginia is your child’s “home state.”* There are exceptions, however, which will be discussed more below.
Virginia will qualify as your child’s home state if:
Mediation is a process where both parents will meet to try to come to an agreement on how to divide up custody and visitation, without leaving the decision to the judge. A third party who is neutral, generally called a mediator, meets with the parents to help them reach an agreement that both parties are happy with.
Virginia law states that in all appropriate cases, the court should order that parents go through mediation before seeing a judge.* This is done in an effort to save time and money for everyone. However, if there is a history of family abuse, you can ask the court to skip the mediation process, and go straight to a hearing in front of a judge.**
The goals of mediation include coming up with a schedule of when the child will see each parent, and figuring out how any disagreements between the parents will be handled in the future.*** You do not have to agree to anything you are not comfortable with or do not want. If an agreement cannot be reached, a hearing will be scheduled in front of a judge.
You will not have to pay for mediation in any custody, support or visitation case. It is paid for by the state.**
* Va. Code Ann. §§ 20-124.4; 20-124.2(A)
** Va. Code Ann. § 20-124.4
*** Va. Code Ann. §20-124.2(A)
Yes. Virginia law requires that the judge communicate the reasons for his/her decision, either face to face or in writing. If the judge did not do this at the hearing, you may want to contact his/her court assistant to ask for an explanation in writing.*
However, the judge does not have to explain every aspect of his/her decision-making process in detail, only the main reasons for the decision.**
* Va. Code Ann. § 20-124.3
** See Kane v. Szymczak, 585 S.E.2d 349, 353 (Va. App. 2003)