Frequently Asked Questions About Virginia Child Custody and Visitation

By | October 25, 2011
child stress virginia divorce

What is the definition of legal custody?

Legal custody is the right to make “legal decisions” on behalf of a child.  Typically, these decisions are made in important areas such as medical care, education and religious training.  Legal custody may be joint or sole.  If parents have been awarded joint legal custody, decisions must be shared unless otherwise ordered by the Court.

 

What is the definition of physical custody?

Physical custody is the right to the child’s presence.  It refers to where a child lives and who has responsibility for supervising the child at a specific time.  Physical custody is often referred to as “visitation.”

Does the mother always win sole physical and legal custody?

No, there is no presumption in favor of granting custody to the mother.

How does a court decide which parent will get custody of a child?

The court decides all matters of custody and visitation by considering the child’s “best interest.”  In this case, the child’s best interest refers to a set of statutory factors that a court must consider, including:

  • The child’s age;
  • The child’s gender;
  • The child’s physical and mental health;
  • The parents’ physical and mental health;
  • The parents’ lifestyles;
  • Any history of abuse;
  • The emotional bonds between the parent and the child;
  • The parent’s ability to provide the basic necessities such as food, shelter, clothing and medical care;
  • The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent;
  • If the child is above a certain age, the child’s preference; and
  • Who has been the child’s historic, primary caretaker.

The court will hear evidence supplied by the parties and may refer the case for a custody evaluation.  At times, a psychologist, family therapist, counselor or child development specialist may be employed to assist the parties in determining the child’s needs.

What are the rights of grandparents to visit grandchildren? 

How may a grandparent gain custody of her grandchildren?

The court may grant reasonable visitation or custody to grandparents if it is determined to be in the child’s best interests.  Grandparents seeking visitation must give notice to both parents.  Generally, grandparent visitation will not be ordered if it conflicts with the rights of custody or visitation of the birth parents.

What about spousal or child abuse protective orders? 

Protective orders, also referred to as restraining orders, can dramatically impact both a divorce and child custody action. An abused spouse may seek a civil and/or criminal protective order, which, among other things, may provide temporary child custody and support, and sole use of the marital residence.

What is the role of mediation in a custody/visitation disputes?

Mediation may prove to be a useful and economically alternative to contested child custody and visitation litigation.  In mediation, a neutral third party assists the parties in reaching an agreement with minimal or no lawyer involvement.

What is the role of collaborative law in a custody/visitation?

Collaborative law is a relatively new model of dispute resolution. Unlike mediation, each party retains an attorney whose sole role is to aid the parties in a negotiation and settling of the issues.  Both parties sign an agreement to provide information and documents. If either party decides to take the other to court, their collaborative law attorneys will not represent them and each party then must retain a litigation attorney. The benefit of a collaborative law resolution is that each party is assisted and advised by counsel at all times and is required to have legal counsel to participate.

If you’ve got questions about the information above, please feel free to drop me a line.  Jason A. Weis, Esquire – Curran Moher Weis P.C. – jweis@curranmoher.com – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020.




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