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Legal Information: Virginia

Custody

Updated: 
December 4, 2020

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.