Custody

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:

1. 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.
2. 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

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)