Know the Laws: Virginia
UPDATED October 2, 2012
Below is state-specific information about custody in Virginia.
Custody is the legal responsibility for the care and control of your child (under 18, generally). Custody could be divided up between the parents (joint custody) or given only to one parent (sole custody).* There are 2 types of custody: legal and physical.
Joint custody could mean a few things:
Joint legal custody: Both parents share the power to make major decisions about the child’s well-being, even though the child’s primary residence may be with one parent.
Joint physical custody: The child will split his/her time between both parents’ homes. It does not necessarily mean that the child will live with each parent 50% of the time -- the time will be split so that the child will have a lot of contact with both parents.*
The court may choose any combination of joint legal and joint physical custody that would be in the best interests of the child. This could mean that
Sole custody means that one parent has the power to make major decisions about the child and the responsibility to be the child’s primary caretaker (meaning the child will live primarily with this parent).*
The other parent may still have the right to visit with the child but will not be able to make major decisions about the child’s education, medical and religious needs. For more information, see What is the difference between custody and visitation?
* Va. Code Ann. § 20-124.1
Visitation allows a parent to visit with his/her child. How often the visits take place, where the visits take place, and whether or not the visits need to be supervised by another adult, will all be determined by the court. Like custody, visitation arrangements will be determined by what the court feels is in the best interests of the child.* For more information on how a judge will make decisions about custody and visitation, see How will a judge make a decision about custody?
Unlike legal custody, visitation does not give a parent the right to make major decisions about the child’s well-being, including education or medical matters. Unlike physical custody, a child will not live with a parent who has visitation rights. However, the child may be able to have overnight, weekend, or even longer visits with the parent, depending on what the court decides.
* Va. Code Ann. §§ 20-124.2(B); 124.3
Getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
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:
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 may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
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 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 other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of 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 what may be best in your situation, please go to VA Finding a Lawyer to seek out legal advice.
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:
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)
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 your family or household member hurts you using violence, force, or threats that result in bodily injury or place you in reasonable fear of death, sexual assault, or bodily injury.**
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:
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)
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)
To get a custody order from a court, you will need to start by filing a petition in the Court Service Unit of a juvenile and domestic relations district court in the county where your child is living.* For a list of courthouses in VA, please see our VA Courthouse Locations page.
You will be charged a fee of $25 unless you are a low-income person and apply to have that fee waived.**
On the petition, you will be asked to provide your address. If you do not want the other parent to know your address because you fear physical harm, be sure to tell this to the clerk and ask how your address can be kept confidential.
* See VA's Judicial System website, Frequently Asked Questions, www.courts.state.va.us/
** Va. Code Ann. §§ 16.1-69.48:5; 17.1-606
After you file for custody, you will have to make sure that the other parent gets legal notice of the court case by having him served with the custody petition and accompaying legal documents (called “service of process”). This is done by having a third party (i.e, a process server, someone from the sheriff ‘s department, or anyone over 18 who is not involved in the case) hand copies of the legal papers to the other parent. Depending on who does the service, there may be a fee. For a list of sheriff departments in VA, please see our VA Sheriff Departments page.
Your case will be assigned to a particular judge after the petition is filed. All of your court dates will generally be scheduled with your assigned judge. You may appear in front of the judge on the date you file if you are asking for immediate temporary custody. Otherwise, you may be given a date to return to court to appear in fronf of the judge. The abuser will also be able to appear in court on that date as well.
Once you are both in front of the judge, you may be asked to participate in mediation (also called alternative dispute resolution). If you are afraid of the other parent, or there is a history of family abuse, you can ask the judge to skip the mediation step.* See What is mediation and who pays for it? for a detailed explanation of mediation. If you do reach an agreement through mediation, the judge will review it and then it will become a court order, unless the court finds that the agreement will not be in the best interests of the child.
If you do not reach an agreement during mediation, or you do not go through mediation, you will have a hearing in front of a judge where both parents will be able to present evidence and witnesses to strengthen their case. There may be multiple hearings before the judge issues a judgment or final custody order. We strongly suggest you get a lawyer to represent you in the hearing to make sure your interests are protected. Go to VA Finding a Lawyer page to find free and paid lawyers.
* Va. Code Ann. § 20-124.4
You can file to have your current custody order modified (changed) if there has been a material (substantial) change in circumstances since your most recent order was issued.* When making a decision about whether or not to change the order, the judge will look at whether there has, in fact, been a change in circumstances and whether or not changing the order will be in the best interests of the child.**
A “material change in circumstances” may include (but is not limited to):
If you move to another state, you may be able to change the state where the custody case is being heard (sometimes known as a "change of venue"). However, if there has been a lot of court dates for your case already or if the other parent objects to the case being moved, this might make it harder to transfer the case. Generally, the judge hearing the case will need to be involved in this decision. This is a complicated issue, so it may be best to contact a lawyer if this applies to you.
To find organizations that provide legal help in Virginia, please see our VA Finding a Lawyer page.
It depends. Generally, whether you can take your child out of the state for a short period of time depends on what your custody order says. The custody order may allow you to take your child out of the state, prohibit you from taking your child out of the state, or it may not address the issue at all. If you are unsure as to whether or not you would be violating your custody order by leaving for a short period of time, we suggest that you ask a lawyer to review the order and advise you. Go to VA Finding a Lawyer for free and paid lawyers.
If you want to take your children out of state for a long period of time (i.e., move out of state), look to your custody order to see if it prohibits taking the children out of state. Custody orders in VA are supposed to include a condition that if either parent wants to move, s/he give the other parent and the court 30 days advance written notice of the intended move. The notice has to include the intended change of address, unless the judge says you do not have to provide your address.* However, the other parent may object to your intended move, especially if it would interfere with his time with the children. In that case, you may have to ask the court to change the order to allow you to move and to modify the visitation schedule so that the move will not violate the other parent's visitation order. For example, if the father has weekend visitation, you could ask that the visits be changed to the summertime if you are moving far enough away that weekend visits are not possible.
The court will decide whether or not to allow the child to relocate based on the best interests of the child. For more information on how to change your custody order, please see If a custody order is already in place, can I get it changed?
Warning: If your custody order says you cannot take your child out of the state or if by moving out of state, you violate the visitation rights of the other parent, you could possibly be charged with contempt of court, parental kidnapping, or both.**
Note: If you are in danger and need to leave the state to protect yourself or your child, you may be able to file for temporary emergency custody in the state that you flee to. Getting a temporary order will mean that you have legal custody of your child for the time being, but the abuser could be notified that you applied for custody in that state, which might make it easier for him to locate you. For more information about how to get this, see Can I get temporary emergency custody? Please talk to a lawyer before leaving the state if at all possible. Go to VA Finding a Lawyer for free and paid lawyers.
* Va. Code Ann. § 20-124.5
** Va. Code Ann. §§ 18.2-49.1; 18.2-47(D)
Generally, either parent (regardless of whether or not s/he has custody) can have access to the minor child’s academic or health records, unless a court decides there is good cause to deny a parent access to those records.* A history of family abuse may qualify as good cause.**
In addition, the child’s doctor or clinical psychologist can deny a parent’s request to see the child’s health records if they feel there is a good chance the child or another person will be substantially harmed by allowing that parent to see the records. The parent who is denied access can have this decision reviewed (and possibly overturned) by another doctor or clinical psychologist with similar training and experience at his own expense.***
* Va. Code Ann. § 20-124.6(A)
** See, for example, L.C.S. v. A.C.S., 453 S.E.2d 580 (Va. App. 1995)
*** Va. Code Ann. §§ 20-124.6(B); 32.1-127.1:03
You can seek a child support order for any and all children who live with you, whether you are married or unmarried.
If you are unmarried, you will first have to establish a legal relationship between the child and the father, which is called paternity. For more information on how to establish paternity, go to Who has custody if there is no custody order in place? If you are married, paternity is automatically established once the child is born.
Child support can be filed for as part of a divorce action, a separation action, a custody action, or a paternity action. You can also receive a temporary child support order as part of a protective order for family abuse. See How can a protective order help me? for more information.
Generally, a child support obligation will continue until the child reaches the age of 18. However, the court will order that the support continue after the child reaches the age of 18 in the following cases:
The amount of the child support payments will depend on many factors such as the number of children, the parents' income, etc. The judge will use specific VA child support guidelines as a guide to figure out the amount. To look at the guidelines, click here. However, it is possible that the judge could stray from the guidelines if using them would be unfair or inappropriate in a particular case.*
As part of the child support order, the judge can also order that either parent provide health care coverage.**
For more information on how to get your child support order enforced, visit the Virginia Department of Social Services website.
* Va. Code Ann. § 20-108.2
** Va. Code Ann. § 20-124.2(C)