A Comprehensive Guide to Virginia Child Custody and Visitation

By | September 25, 2018
virginia family law child custody

We have a lot to cover as we talk about the topic of child custody in detail. The first part of this in-depth guide on Virginia child custody laws will walk you through what contested custody litigation is like. We will discuss at the outset the relevance of the status quo and what weight it should have on the initial and ongoing child custody orders. This guide is not legal advice and is not intended to apply to your specific situation. It is not a substitute for legal representation or advice. Please do not attempt to represent yourself. To contact me, please call my office or send me an email through either my blog or my firm’s website.

Ready? Let’s start.

Virginia Child Custody Laws and Contested Custody Litigation

Why focus on “contested” custody situations? If you and the other parent have custody already worked out, you probably wouldn’t be here. But, you are here, and that tells us you are either expecting a contested case or you are in the middle of one. No problem. Our family law attorneys have collectively been involved in hundreds of contested custody cases, involving all manner of issues, representing mothers and fathers (and even grandparents) alike. The information in this Virginia Child Custody Guide will help you.

By the time you are done, I promise you will have learned a lot about Virginia child custody laws and procedure, and you will be ready for an intelligent and informed discussion with an experienced lawyer about your specific facts.

Is a contested child custody case a good idea?

The common conception is that contested custody litigation is not in the children’s best interest. There is a lot of truth to that statement, especially when divorce and child custody collide. If the parents can come to a reasonable settlement, they should. Why leave to a stranger (like a family law judge) matters relating to a child you brought into this world?

Sometimes, it’s not that easy. We know that.

There are certain instances where custody must be litigated to protect the best interests of the children. Your job as a parent is to determine whether the issues in your case merit the effort and expense of litigation.

After going through this child custody guide, consider reviewing the other child custody and child visitation articles on this website. In many cases, those articles will provide greater or other useful details.

Evaluating a Child Custody Case in Virginia

An experienced child custody attorney sits down with his or her client and evaluates the case objectively and with a focus on both the facts and the Best Interests of the Child statute. Facts include a history of each parent’s relationship with the children up to the present date, evidence of abuse or neglect, a detailed understanding of any significant issues related to the children’s health, safety, education and general welfare, an evaluation of the current status quo custody arrangement, and a breakdown of what the future should hold based on the children’s best interest. Ultimately, an experienced child custody attorney will be looking to pair the facts with the factors of Virginia Code 20-124.3, which is Virginia’s Best Interests of the Child statute. All custody and visitation cases are governed by that statute; the Court must consider each of the 10 factors in that statute.

All of the Virginia statutes applicable to family law, the Best Interests of the Child statute is the only one I print up in its entirety and provide to clients during my initial consultation. On this website, it can be found here.

What is the custody and visitation status quo?

What “is” the status quo sometimes remains the status quo in a child custody case. In other words, if there has been a schedule that the parents have been following for any significant period of time and that has worked reasonably well for the kids, courts may look to that status quo as the basis for any ongoing orders. And, the rationale for such decisions is simple: why fix what’s not broken. A family law judge may feel there is no reason to introduce changes that might further traumatize children. In many ways, therefore, the status quo is the touchstone of all custody cases.

Does that mean the family law court will always keep things the same? Of course, the answer is “no.” What it does mean, however, is that the court will want a good reason why the status quo and the children’s existing routines should be changed. What about the status quo is not working to serve the children’s interests?

If you are the custodial parent who is facing a modification request, consider whether the status quo has been working and how you’re going to advocate to the court that things should say the same.

If you are the noncustodial parent, you should be prepared to explain to the court why the status quo is inconsistent with the children’s best interest. Is the current “status quo” merely a temporary departure from your past routines with the children? Is the current arrangement being forced upon you and the children over your objections? Have the children reacted in a negative way to your decreased role?

Often noncustodial parents have more rights than they realize and they are not as stuck with the status quo as they sometimes think.

I’ve previously written a series of articles posing questions you might consider when preparing information for your contested custody case.  One relates to parenting roles, one relates to the parent child relationship, and the final one relates to general topics likely relevant to a judge determining your matter.

A Virginia Custody & Visitation Roadmap

Now that we have the introduction out of the way, here is a road map of the major issues you will likely see in Virginia child custody cases. To make navigation easier for you or if you simply prefer to skip ahead, I have broken this guide into subparts listed below. Feel free to scroll down to your particular area of interest or enjoy the entire guide and learn how you can best position yourself for a successfully custody and visitation outcome.

  1. What factors does the Court consider?
  2. How do family courts deal with a child’s preference?
  3. Domestic Violence or child abuse and its impact on child custody
  4. Co-parenting and communication between parents
  5. Interfering with the parent-child relationship
  6. Legal and physical custody
  7. Filing your child custody papers
  8. Abuse allegations
  9. Independent child custody evaluations
  10. Medical and mental health record disclosure

What Factors Does a Court Consider When Deciding Child Custody and Visitation?

In every custody and visitation case the Court must consider the “best interests of the child.” What does that mean? Good question. To determine what is in a child’s “best interests” the Court looks at 9 different factors listed in Virginia Code §20-124.3. Those factors are listed immediately below. The Court must consider each of those factors. It can give as much or as little weight to each factor as it wants; it’s entirely in the Court’s discretion. Sometimes a single factor (such as a child’s preference or acts of child abuse) outweighs all other factors. Later in this child custody and visitation guide, I will touch on the factors that appear to have the greatest impact.

  1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
  9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
  10. Such other factors as the court deems necessary and proper to the determination.

What do these factors mean? Don’t worry. We’ll get there. As I mentioned above, I’ll explain the factors that seem to be used most often to distinguish one parent from another or to demonstrate what is really in the children’s best interests. Of course, every case is different, but there are common, easy things you can do to help your child custody and visitation case.

How Does Virginia Deal with A Child’s Preference?

You may be surprised that we discuss this so early, but there is a very good reason for it.

Parents are often under the impression that the Court will simply endorse whatever visitation schedule the children want and, as a result, they sometimes resort to bribing the children or pressuring the children to choose sides. The Court will not abdicate its decision-making power to the children. Virginia Code 20-124.3(8) does, however, allow the Court to consider “the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference.” What does that mean?

Essentially it’s Virginia’s way of recognizing that what the children prefer is important, but sometimes what they prefer is not what is best. I typically adhere to the following guidelines when thinking about children’s preference:

  • Children younger than 12: Most courts will deem children under the age of 12 as too young to have a reasonable preference. Moreover, courts are more likely to view the limited value of a very young child’s preference as being outweighed by the damage and stresses caused by having a very young child testify in court.
  • Children ages 12-14 years: A court may hear from such children, but will need to be convinced such children are sufficiently mature to understand the consequences of their preferences and make decisions in their best interests. With children of this age, a court will look very closely at the efforts of each parent to persuade (or outright bride) the children into expressing a preference in that parent’s favor. Is it the child speaking or the parent speaking through the child?
  • Children ages 14-16: A court will hear from such children and remain neutral about their ability to assess what is in their best interests. With children of this age, a court is likely to pay special attention to the children’s academic record, discipline record, historical relationship with each parent, and other indicia of maturity.
  • Children ages 16-18: A court will hear from such children and presume they have sufficient age, intellect, and maturity level to assess what is in their best interest until convinced otherwise. With children of this age, a court is likely to give special attention to whether the children’s preference is in their best interest or merely an attempt to avoid discipline. Additional complications arise once the children are capable of transporting themselves between their parents’ homes and/or physically resisting visitation transfers.

Domestic Violence or Child Abuse and its Impact on Child Custody

How does the family court handle child abuse allegations?

Perhaps not surprisingly, a parent with a history of domestic violence or child abuse is going to face an uphill battle in seeking joint legal and joint physical custody. Virginia Code 20-124.3(9) requires a Court to consider past acts of family abuse when determining custody and visitation and experienced Northern Virginia Family Law Lawyers know that allegations of abuse can sometimes overshadow all of the other factors. For example, the best interest statute specifically connects the family abuse factor with factor (6) relating to one parent encouraging the child’s relationship with the other.

Here are some things to consider when dealing with a custody and visitation case that involves allegations of abuse:

  • How was the abuse discovered and how can it be proven in Court? Was there a witness? Did a teacher or doctor report the abuse? When a parent discovered the abuse, how long did it take for him or her to respond? What steps did he or she take to prevent further abuse? Were criminal charges filed?
  • How did the act of abuse come about? Was the abuse “merely” over-zealous discipline or did the parent lose his or her temper? Did drugs, alcohol, or mental illness cause the parent to act out of character?
  • Did the abusive parent accept responsibility or take accountability for the act? If so, what steps did he or she take to prevent future acts of child abuse? Have there been any further acts of abuse or was the act an isolated incident?
  • What does the child’s relationship with the abusive parent look like now? Have “fences been mended” or is the child exhibiting symptoms that suggest the abuse has had a lasting impact?

Whether you are a parent who has been accused of abusing your child or you are a parent who believes your child has been the victim of child abuse, it is important to seek the advice of an experienced Virginia Family Law Attorney. When it comes to allegations of abuse, the stakes can be quite high.

Family courts take child abuse allegations very seriously and so should you.

Co-parenting and Communication Between Parents

Family law judges expect parents to communicate effectively

One of the foundational elements that a family law judge takes into consideration before making a decision is whether one parent is frustrating or preventing communication or refusing to engage in co-parenting. A parent’s ability to communicate with the other to resolve disputes relating to the children is perhaps the most important factor relating to legal custody. If the court is not convinced the parents can work together to resolve parenting disputes, it may believe awarding one parent sole legal custody is the only way to ensure important decisions relating to the children get made. That is what 20-124.3(6) is all about.

Virginia laws favor co-parenting and communication; it is clear that a parent who is unwilling to engage in both may not be fit to have joint or primary custody.

Interfering with the Parent-Child Relationship

If one parent has been uncooperative (and that phrase is not specifically defined by Virginia law) and that has adversely affected or may adversely affect the children’s relationship with the other parent, the court will have to take such misconduct into consideration. The weight the court gives such behavior will depend on how serious the misconduct is in its view. A family law judge will have very little tolerance for clear cases of parental alienation. A parent who actively works to engender hostility between the child and other parent will typically face harsh consequences.

This is good news for parents who communicate and co-parent and bad news for those that don’t.

Uncooperative parenting and interfering with the other parent’s rights may not only lead to a change in custody, but a contempt action against the interfering parent. Court ordered joint legal custody and parenting time are not suggestions: they are mandates. Willfully violating a child custody order can lead to sanctions, fee awards, and even jail time. We discuss contempt in family law cases on our other articles on this blog.

More about Virginia’s Best Interests of the Children Standard

It is the single most important concept in every child custody case. It is vague and broad, but you better know its application if you intend to have any degree of success in your child custody case. Again, it is the only statute I print out in its entirety and provide to clients during initial consults.

The purpose of the Virginia best interest standard is to give the court broad discretion to order a custody and visitation plan that is consistent with the child’s health, safety, welfare and education.

That word “discretion” is very important. While the judge will weigh each of the custody factors, the judge can give as much or as little weight to each factor as the judge deems appropriate. With custody cases, often there is not a strictly right or wrong decision unless the judge abuses his or her discretion when making a ruling.

This court discretion when assessing the child’s best interest is also what makes child custody decisions difficult to successfully appeal. When an appellate court takes a look at a judge’s decision on what facts he or she gave less or more consideration, they generally have to find (with some exceptions of course) that the judge abused his or her discretion when evaluating and weighing the facts.

Time and Bonding with the Child

Earlier we looked at the importance of the status quo and noted why a court might not want to introduce changes to a child’s routine. The status quo may also give the court some insight into a parent’s ability to accurately assess and meet a child’s various needs. 20-124.3(3) requires the court consider a parent’s ability to assess the child’s emotional, intellectual, and physical needs. A family law judge may assume a parent who has historically had more time with the child may also have a sharper, more developed ability to assess and meet the child’s needs.

Further, the level of emotional bonding that the child has with the parents can be a strong consideration as it also goes to the ability of a parent to accurately assess a child’s emotional, intellectual and physical needs. Bonding isn’t just an issue of face time with the children. Days a parent spends with the kids are important, but the time must be meaningful. Parents who are not bonded with their children as a result of their own misconduct may face a tough time in custody and visitation cases.

Bonding is also a function of a child’s age, maturity, temperament and a parent’s personality and stability.

Here is a hypothetical to illustrate these points. Let’s assume you have a working dad who is at the job 60+ hours per week. Further, assume you have a stay-at-home mom and two children ages four and six. In such a situation, it would not be uncommon for the children to be more bonded with the mother and for mother to be better able to assess the children’s needs. It would simply be a function of the mother spending more quality time with the young children. It would have nothing to do with whether dad was a “good” or “bad” parent. Does that mean the dad in our hypothetical is out of luck? Of course not. Does that mean mom is automatically a better parent, because she has more time with the children? Nope.

If these two go through a divorce, the father will have to make adjustments to his schedule or his life to make himself more available to spend quality time with the children. With that, the father will have an opportunity to build up the bonding between himself and his children (and fine tune his ability to accurately assess the children’s ques and needs). If mother does not interfere with that bonding, the father should be able to enjoy substantial visitation time with the kids in short order.

Gender, race, religion, sexual orientation, and a parent’s financial status

There cannot be a preference for gender of one parent over another. Virginia law forbids it. Virginia courts abolished the “tender years’ doctrine” long ago which presumed very young children were by default better off with their mothers.

Similarly, the issue of race is obviously not a consideration.

Except in very limited circumstances, religion is not consideration. Provided the religious practice is not dangerous, Virginia Family Law Courts will generally allow each parent to share his or her religious practice with the children. Where a child has a long and deep history of religious practice, it is conceivable a Court might identify that practice as being so fundamental to the child’s identity that prioritizing the other parent’s visitation over the child’s religious practice would not be in the child’s best interests. In such cases, however, the non-practicing parent’s visitation would likely be shifted to an alternative time, not removed altogether.

Sexual orientation is generally not a consideration. Like the “tender years doctrine,” negative presumptions and inferences regarding homosexual parents have largely faded away. Instead and as would be the case with all parent activities, Virginia Family Law courts will more likely focus on the child and the family’s circumstances.

The family court also cannot consider as a sole or primary factor the financial position of the parents. Wealthy parents are not afforded any advantage over poor ones when it comes to custody and visitation.

Educational choices in Virginia child custody cases

Where will the child go to school? Will it be a public school or private one? Will the child be home schooled?

Northern Virginia is fortunate to have some of the best public schools in the nation. In Fairfax and Loudoun County, however, courts generally do not become overly involved in what school a child should attend; the Court will not “pick” a school unless you force the issue. If the parents cannot agree and the Court is asked to make a decision between two schools, what commonly happens is the Court will designate one parent as the parent who has final decision-making authority over decisions relating to a child’s education. That doesn’t mean that parent will make that choice forever or that the Court won’t simply decide which school a child should attend after hearing from each parent’s witnesses and experts.

While each case is different, where a child does not have special educational or medical needs, a Court is unlikely to require the parents to enroll their child in private school. Where parents disagree, a common resolution is to allow the child to attend private school if the parent who is insisting on same pays most or all of the associated costs.

Legal and Physical Custody

Understanding what legal and physical custody mean under Virginia law is an important part of your preparation.

Legal custody refers to a parent’s ability to make legal decisions on behalf of his or her child. Joint legal custody in Virginia means parents must share the decision-making regarding matters involving the child’s health, safety, education and welfare. Think of joint legal custody as a mandate to communicate and co-parent. The idea is to ensure neither parent makes decisions that are important in a child’s life without involving the other parent. This includes decisions regarding health and medical treatment, education, extracurricular activities, and anything that is of significance to the child. Even attendance at religious activities can be covered under a joint legal custody order.

Joint legal custody, however, does not necessarily mean that parents must agree on all matters relating to the children; often, even after consulting and conferring with one another, parents will disagree. Nor does it mean that mutual consent is always required to move forward with an activity for the children (though significant activities like school enrollment and medical care often require the consent of both parties as a means of lawsuit avoidance). Where disagreements exist, parents are left to compromise or seek the assistance of a third-party (including a family law judge at court).

Parents will sometimes ask whether joint legal custody is an all or nothing proposition such that the family law judge cannot order one parent to have exclusive decision-making authority over one or more topics. The answer is “no” and the judge can make certain aspects of legal custody sole without making a complete order for sole legal custody. Our family law attorneys typically see this in the context of medical and/or educational decisions when one parent is far better equipped or the other parent is simply unfit to deal with such issues.

Joint physical custody gives both parents control over the child’s physical presence and decisions related to him or her. Joint physical custody is typically synonymous with visitation. A 50-50 parenting time arrangement is not required for there to be joint physical custody. So long as each parent has significant periods of time with the children, joint physical custody is appropriate.

Virginia’s public policy mandates frequent and continuing contact with both parents in most child custody cases

The aim of most Virginia child custody laws is to ensure the children have frequent and continuing contact with both parents and that parents share in the rights and responsibilities of raising the child. The exception to that rule is where such an order is not consistent with the child’s best interest. The “frequent and continuing contact rule” is not specifically defined and does not have specific elements that the court must follow. Once again, the court is given discretion after weighing the best interest factors to determine how much visitation should occur.

A family law judge cannot do whatever he or she wants. The judge cannot give preference to gender, he or she cannot arbitrarily give sole custody to a parent, and the judge must base his or her decisions on the facts and law.

Sole legal and physical child custody orders

Sole legal custody orders give one parent the exclusive right to make decisions concerning a child’s health, education and welfare. That doesn’t mean the parent who obtained sole legal custody gets to make all of the decisions at all times. That is because the parent who has visitation (but not custody) does still have supervisory responsibilities while the child is in his or her control.

Sole legal custody orders are somewhat rare in Virginia. In our experience, sole legal custody orders are reserved for situations where (i) parents are separated by large geographic distances; (ii) one parent is functionally disabled; (iii) one parent has committed acts of misconduct reflecting his or her inability to safely care for the child; or (iv) the parents are fundamentally unable to communicate with one another and a final decision-maker is needed. The final reason is far and away the most common ground for granting one parent sole legal custody.

Sole physical custody orders without visitation to the other parent are rare in Virginia. It is highly unlikely a family law judge will award a parent NO visitation time with a child. Instead, a cautious family law judge is more likely to award small increments of visitation time, severely restrict visitation by requiring the visitation be supervised by a third-party in a controlled environment, and/or condition visitation on a parent completing a treatment program.

What is primary custody?

You’ve probably heard the term “primary physical custody” or “primary physical custodian.” Those words really don’t have a special meaning under Virginia family law. The “primary physical custodian” typically refers to the parent who has more time with the child. Some courts may begin with the view that the primary physical custodian is more likely to have greater insight into the needs of the child (simply because that parent has more time with the child), but that limited deference should not divert the Court from examining the specific facts of each disagreement.

What are some common custody schedules that family law judges might order?

Common Custody Schedules:

  • Week on and week off with Parent A having the child for one week and Parent B having the child the following week;
  • 2-2-3 with Parent A having the child Monday and Tuesday and Parent B having the child Wednesday and Thursday, and the parents alternating weekends consisting of Friday, Saturday, and Sunday each week;
  • Extended Alternating Weekends with Parent A having the child Tuesday through Sunday on alternating weeks and Parent B having the remaining time.
  • Alternating Weekends with Parent A having the child from Friday through Sunday on alternating weeks and Parent B having the remaining time. Parent A will often also have an evening visit for several hours on the Wednesday during the off week. For many years, the alternating weekend schedule seemed to be the most commonly ordered schedule, because it played to the stereotype of fathers earning larger incomes and working longer hours and stay-at-home mothers earning little to no income but having greater availability.

Major holidays are typically defined and alternated between the parties year to year. By agreement, parents can be very detailed and thorough with holiday schedules. A court, in contrast, is more likely to stick to assigning Christmas, Thanksgiving, and little else. Monday Federal Holidays typically go to the parent who has the children on the weekend adjoining the holiday.  I’ve previously written about common holiday schedules and dealing with holidays as a single parent.

In most cases, each parent will also have two consecutive or non-consecutive weeks of visitation during the child’s summer break from school. This allows a parent to travel with the children.

Will the family law court separate siblings in child custody cases?

Virginia child custody laws favor the preservation of siblings’ relationship with one another. Generally, significant evidence needs to be submitted to separate siblings in child custody cases. This is called “split custody.

Filing an Emergency Motion

Emergency child custody requests are not appropriate simply because a parent thinks that the court should address the issue immediately. For most courts an “emergency” exists only when there is a threat of immediate harm to the child or a complete withholding of visitation. In cases where the need for an order does not involve imminent risk of harm to the child, but there is still a matter that requires a faster hearing, the family law court may have the ability to expedite the hearing. In other words, the court can set a hearing date earlier than it would under traditional circumstances.

It is sometimes difficult to determine what is and is not an emergency. The advice of an experienced child custody lawyer is important because not only can emergency requests cost parents a lot of money in fees, but bringing a frivolous emergency request may also damage a parent’s credibility with the family court.

Child Custody Evaluations

A child custody evaluation can be a useful tool for giving parents insight into their parenting practices and helping them identify custodial arrangements that better serve their children’s interests. Many custody evaluators are forensic psychologists, although a Ph.D. is not necessary to be an evaluator.

The purpose of an evaluation is to do a thorough and objective analysis of the parents, the children, and the facts that have led to the contested case.

Evaluations usually involve psychological testing of the parents, interviews with the parents, children, and collateral witnesses, review of documents and other information submitted by the parents or the lawyers, review of any medical or other psychiatric or psychological records as well as records from any law enforcement or social services agency, all of which culminates in a report to the family court and the lawyers.

The custody evaluator does not take the place of the judge. He or she does nothing more than make recommendations to the parents and perhaps even the court. Those recommendations are taken seriously, however, and the court has the discretion to give the recommendations great weight. In the vast majority of instances, the custody evaluator will have spent more time talking with parents and reviewing documents than the family law judge presiding over your hearing.

When is a child custody evaluator appointed?

A custody evaluator can be agreed upon by the parties at any time. Some courts also have the ability to appoint a custody evaluator upon the request of either parent. Often it makes sense to get a professional involved early in the process to prevent small disagreements from growing into larger fights.

Is the report admissible evidence?

It depends. It can be admissible. It is very common in contested proceedings for the lawyers to stipulate that the report shall come into evidence. While common, some thought should be given as to whether or not this is wise. Even if the report is admitted into evidence, it does not prevent either parent from subpoenaing and requiring the evaluator to come to court and be cross-examined on his or her recommendations and the basis for them. For most evaluators, this cost will be in the thousands.

Appointing a Guardian Ad Litem

How does the court appoint a lawyer for the children?
The Court has the discretion to appoint a lawyer for the child in certain custody cases

Back to the best interest standard, if the court determines that a lawyer (traditionally called “a Guardian Ad Litem”) should be appointed for the child or children, Virginia child custody statutes give the court the discretion to make that order.

We see such appointments in cases where there are allegations of abuse or a child has a strong preference that cannot be introduced to the Court in another way. If a court believes the parents’ lawyers cannot adequately set forth a child’s position, a guardian may be appointed.

Distinguishing between a Guardia Ad Litem and a custody evaluator is important. A Guardian Ad Litem is not in a position to do a psychological assessment of the situation and give a recommendation to the court based on such analysis. The lawyer appointed for the child is more of an investigator of the facts to determine how serious the issues are and what, if any, changes need to take place to the status quo custody and visitation arrangement. Importantly, a Guardian is not a witness and cannot be asked to testify.

How is a Guardian Ad Litem paid?
How a Guardian is paid and which parent pays for it is within the discretion of the court and dependent on the issues (e.g. allegations, need for minor’s counsel, cooperation with him or her) as well as the needs and ability to pay of each parent. The court also has the discretion to fix the compensation of minor’s counsel so that it does not become an unreasonable financial burden on the parents.

Medical and Mental Health Record Disclosure

Does a parent have a right to privacy in his or her medical and mental health records in a contested child custody case?

The need for mental health and medical records sometimes collide with Virginia child custody cases. If a parent’s mental health is an issue in the case, the court has the discretion to order that parent to submit to a mental examination, which may include a review of that parent’s medical records.

The court is mandated by Virginia child custody statutes and case law to protect a child’s best interest. If one parent has a medical or mental health condition that has an impact on the child’s best interest, that impact and necessity for the information may outweigh any privacy interest that exists. This is very common in substance abuse cases including the abuse of prescription drugs for a known medical condition.


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