Basic info and definitions
What is custody?
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).1 There are two types of custody: legal and physical.
Legal custody is the right to make major decisions about your child’s well-being, including matters of education, medical care and religious development. Physical custody decides who the child will live with on a day-to-day basis.
1 Va. Code § 20-124.1
What is joint custody?
Joint custody could be divided into joint legal and joint physical custody.
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 in a way that the judge determines is in the best interests of the child.1
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
- the child lives with one parent, but both parents have the power to make decisions about the child;
- the child lives with both parents (split-time) and both parents have the power to make decisions about the child; or
- the child lives with both parents, but only one parent has the power to make major decisions about the child.1
1 Va. Code § 20-124.1
What is sole custody?
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).1
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?
1 Va. Code § 20-124.1
What is the difference between custody and visitation?
Visitation, also known as parenting time,1 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 judge. At the request of either party, the judge can order that the exchange of a child take place at an appropriate meeting place instead of at the home of either parent.2
Custody and visitation arrangements will be determined by what the judge finds is in the best interests of the child. The judge could award joint legal, joint physical, or sole custody. There judge will not automatically favor any form of custody.3 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 judge decides.
1 Va. Code § 16.1–278.15(G1)
2 Va. Code § 20–124.3
3 Va. Code §§ 20-124.2(B); 124.3
What is mediation and who pays for it?
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.
Virginia law states that in all appropriate cases, the court should order that parents go through mediation before seeing a judge.1 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.2
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.3 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.2
1 Va. Code §§ 20-124.4; 20-124.2(A)
2 Va. Code § 20-124.4
3 Va. Code § 20-124.2(A)
What 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)
Without a custody order, it is possible that you may not have these legal rights, even if you are the parent who takes care of the child every day.
Also, your legal rights without a custody order may depend on whether or not you are married to the other parent.
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 Advocates and Shelters page and the VA Finding a Lawyer page.
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.
Should 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 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.
Who can get custody and visitation
Who 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.1
Non-parents who are “persons with a legitimate interest” may also be able to seek custody or visitation of a minor child.2 A person with a legitimate interest includes, but is not limited to:
- 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.3
Note: Even though a non-parent may be able to apply for custody, the natural parents of the child will be given preference in a custody dispute, as long as they are considered fit (able) to take care of the child.2
1 Va. Code § 20-49.1
2 Va. Code § 20-124.2(B)
3 Va. Code § 20-124.1
I 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.1
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.2
Note: If your adult son/daughter, who is your grandchild’s parent, is deceased or incapacitated, you can show the judge any proof you have of his/her consent to your grandchild having visitation with you.3
1 Williams v. Williams, 501 S.E.2d 417, 418 (Va. 1998)
2Yopp v. Hodges, 598 S.E.2d 760, 765 (Va. App. 2004)
3 Va. Code § 20-124.2(B2)
Can a parent who committed violence get custody?
When making a decision about custody or visitation, the judge must take into account any history of family abuse, sexual abuse, child abuse, or an act of violence, force, or threat that has taken place within the past ten years.1
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 judge to prohibit the abuser from filing a petition for custody or visitation for up to ten years if the judge finds that:
- it is in the best interests of the child; and
- one of the following is true:
- the abuser was convicted of committing one of the following crimes against his/her child, any child who lived with him/her 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/her child or a child who lived with him/her at the time of the crime:
- felony assault that resulted in serious physical injury; or
- felony sexual assault.2
- the abuser was convicted of committing one of the following crimes against his/her child, any child who lived with him/her at the time of the crime, or against the child’s other parent:
1 Va. Code § 20-124.3(9)
2 Va. Code § 20-124.2(E)
Can I get temporary custody if I have a protective order against the other parent?
As part of your protective order, the judge can award you temporary custody of your child, which would last until the protective order expires.1 For more information on protective orders, please see VA Protective Orders (for Family Abuse).
1 Va. Code § 16.1-279.1(A)(8)
The custody process
What will the custody process look like?
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.1 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.2
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 Virginia.
1 Va. Code § 20-124.4
2 Va. Code §§ 16.1-278.15(A); 20-103(A)
How will a judge make a decision about custody?
A judge will make a decision about custody based on what s/he thinks is in your child’s best interest.1 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:
- the age and physical and mental condition of the child;
- the age and physical and mental condition of each parent;
- the relationship existing between each parent and each child, and the ability of each parent to meet the emotional and physical needs of the child;
- the needs of the child, including other important relationships in the child’s life such as siblings, friends and other family relatives;
- the role that each parent has played in the child’s life, and the role each parent will play in the future;
- the likelihood that a parent will actively support the child’s relationship with the other parent, which includes looking at whether a parent has denied the other parent access to the child in the past, without good reason for doing so;
- the willingness and ability of each parent to maintain a close and continuing relationship with the child;
- the ability of each parent to cooperate with the other parent in resolving disputes regarding matters that affect the child;.
- the preference of the child, if the child is old enough to understand and express such a preference;
- Note: The court will consider any likelihood of improper influence by one or both parents on the child’s decision; and
- any other factor the court feels is necessary and proper in order to make a decision about custody.2
1 Va. Code § 20-124.2(B)
2 See Brown v. Burch, 519 S.E.2d 403, 408 (Va. App. 1999); Va. Code § 20-124.3
If I have moved away from the house where my spouse and children currently live, will this hurt my chances of gaining custody?
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.1 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.2 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.
1 Va. Code § 20-124.3(5) & (7)
2 Va. Code § 20-124.3(9)
How much does it cost to file a custody petition?
A fee of $25 is generally required for filing either a custody or visitation petition in court.1 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 when you file the petition if you are a Virginia resident. (If you are not a Virginia resident, you could only get court fees waived if you are the defendant in the case.)2 You can ask the clerk of court for more information about how to ask for a fee waiver when you file your petition.
1 Va. Code § 16.1-69.48:5
2 Va. Code § 17.1-606
Do I need a lawyer?
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.
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.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Can I file for custody in Virginia? (Which state has jurisdiction?)
Generally, you can file for custody in Virginia only if Virginia is your child’s “home state.”1 There are exceptions, however, which will be discussed more below.
Virginia will likely qualify as your child’s home state if:
- Your child has lived in Virginia for the last 6 months in a row or longer;
- Virginia was the last state that your child lived in for at least 6 months in a row or longer (and now s/he has been living somewhere else for less than 6 months but a parent still lives in Virginia); or
- Your child is less than 6 months old, but has lived in Virginia since birth.
Leaving Virginia for a short period of time will not change the fact that Virginia is your child’s home state.2
If you and your child recently moved from Virginia to another state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in Virginia, as long as your child has most recently lived there for at least six months. There are some exceptions, however:
- In some cases, you can file for custody in Virginia when it is not your child’s home state if you (or the other parent) and your child have a “significant connection” to Virginia and substantial evidence is available in Virginia concerning the child’s care, protection, training, and personal relationships. Generally, however, you can only do this if no other state qualifies as your child’s home state, or if the home state has agreed to let Virginia have jurisdiction (power) over your case.3 This can be complicated, and if you think this applies to you, please talk to a lawyer in both states about this if possible. For a list of legal resources in Virginia, please see VA Finding a Lawyer.
- You can file for temporary emergency custody in Virginia if it is not your child’s home state if:
- the child is present in Virginia; and either
- the child has been abandoned; or
- it is necessary in an emergency to protect the child because the child, a sibling, or a parent of the child (you) is subjected to or threatened with mistreatment or abuse.4
- the child is present in Virginia; and either
1 Va. Code § 20-146.12(1)
2 Va. Code § 20-146.1
3 Va. Code § 20-146.12(2), (3)
4 Va. Code § 20-146.15(A)
If the judge denies a request for custody, does s/he have to explain why?
Virginia law requires that the judge communicate the reasons for his/her decision, either in person 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.1
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.2
1 Va. Code § 20-124.3
2 See Kane v. Szymczak, 585 S.E.2d 349, 353 (Va. App. 2003)
Steps for filing for custody
The steps for filing for custody will depend on your particular situation, such as whether or not you will be filing for custody as part of your divorce or separation action, as part of a paternity action, or on its own. It is best to talk to a lawyer before starting this process, or at the very least have a lawyer look over your papers before you file them so you can make sure you are not making any mistakes. For more information, see Do I need a lawyer? Below, we provide a general outline of the steps for filing for custody.
Step 1: File the custody petition in court.
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.1 For a list of courthouses in Virginia, 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.2
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.
1 See Virginia’s Judicial System website, Frequently Asked Questions
2 Va. Code §§ 16.1-69.48:5; 17.1-606
Step 2: Get the custody papers served on the abuser.
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/her served with the custody petition and accompanying 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 Virginia, please see our VA Sheriff Departments page.
You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?
Step 3: Appear in front of the judge.
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 front 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.1 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.
1 Va. Code § 20-124.4
After an order is in place
If a custody order is already in place, how can I get it changed?
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.1 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.2
A “material change in circumstances” may include (but is not limited to):
- one parent intentionally keeping the other parent from visiting with the child without good reason;1
- changes in the child’s life, such as special educational needs or health needs;
- negative changes in the life of the parent who has custody, which will impact the welfare of the child; or
- positive changes in the life of the parent without custody, such as remarriage, creation of a stable home environment, and increased ability to provide emotional and financial support for the child.2
Generally, you would file a petition for modification at the juvenile and domestic relations district court that issued your original custody order. You would have to arrange for the abuser to be served with the petition so that s/he has the chance to appear in court. The hearing may be similar to previous custody hearings, but you will have to prove that a material change in circumstances has occurred and that it is in the child’s best interests to change the order.
Also, if one of the parties in a custody case is a member of the Army, Navy, Marine Corps, Coast Guard, National Guard, or any other reserve, and the reason for the modification request is that party’s deployment, then it can be requested that the petition be reviewed more quickly by the judge.1
1 Va. Code § 20-108
2 See Keel v. Keel, 303 S.E.2d 917 (Va. 1983)
Can I change the state where the case is being heard?
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. For more information on changing a final custody order in a different state, go to the Changing a final custody order section on our non-state-specific Custody page
To find organizations that provide legal help in Virginia, please see our VA Finding a Lawyer page.
If there is a custody order in place, can I relocate?
Custody orders in Virginia are supposed to include a condition that if either parent wants to “relocate,” s/he has to 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.1 Note: The law does not indicate how far the move must be in order to be considered a “relocation.” If you are not sure if this applies to your situation, please get advice from an attorney. You may also want to ask an attorney for advice on the best way to keep a record of the notice you send to the other parent (for example, perhaps sending it return-receipt requested, etc.) Upon receiving the notice, the other parent may object to your intended move, especially if it would interfere with his/her 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.
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.2
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/her 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.
1 Va. Code § 20-124.5
2 Va. Code §§ 18.2-49.1; 18.2-47(D)
Can a parent who does not have custody have access to the child's records?
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.1 A history of family abuse may qualify as good cause.2
In addition, the child’s doctor, clinical psychologist, or clinical social worker can deny a parent’s request to see the child’s health records if s/he feels that 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, clinical psychologist, or clinical social worker with similar training and experience at his/her own expense.3
1 Va. Code § 20-124.6(A)
2 See, for example, L.C.S. v. A.C.S., 453 S.E.2d 580 (Va. App. 1995)
3 Va. Code §§ 20-124.6(B); 32.1-127.1:03