Custody
and Visitation
Note:
Virginia law related to Custody and Visitation is complex and
subject to change. This information is only a guide. For up-to-date
information, contact a lawyer or your local domestic violence
program. Remember, domestic violence advocates can provide
information and support, not legal advice.
What types of custody arrangements are available?
Who may petition for custody or visitation?
How do I file a custody petition?
Is mediation required or appropriate?
What factors will the court think about when
making custody or visitation decisions?
What does the court think about when deciding visitation rights?
Can the non-custodial parent attend school
functions and see the child’s records?
Can one parent refuse to allow
visitation if there is a fear that the other parent will hurt the child during
the visitation?
What if a victim of abuse wants to relocate for safety reasons?
What types of custody arrangements are available?
Any combination of the following is allowed under 20-124.1
- Joint Legal Custody : Both parents equally share the care
and control of the child. Each has the same power when making
important choices for the child (such as medical care)
- Joint Physical Custody : The parents share physical and
custodial care of the child.
- Sole Legal Custody : Only one parent has the power to
make choices concerning the child.
- Sole Physical Custody : Only one parent has physical custody.
In most cases the other parent is given visitation rights.
Who may petition for custody or visitation?(20-124.1 & 16.1-241)
- Anyone with a “legitimate interest” (broad
statement) may petition. This includes grandparents, stepparents,
former stepparents, blood relatives and family members.
Those who may not petition for visitation
or custody include:
- Anyone whose parental rights have been legally terminated
by court order if the child has subsequently has been legally
adopted.
- Anyone whose interest in the child derives from or through
a person whose parental rights have been terminated; if the
child has subsequently been legally adopted (except if final
order of adoption is entered pursuant to VA code 63.1231
providing for adoption of an infant by a new spouse of the
birth or adoptive parent).
- Anyone who has been convicted of rape (VA code 18.2-61
a) or incest (VA code 18.2-366 b), there the child was conceived
as a result of the offense.
How do I file a custody petition?
At the Juvenile and Domestic Relations Intake Office:
- The parent asking for custody needs to make an appointment
with an intake worker. It may take a few months to get the
appointment.
- The parent asking for custody needs to provide the address
of the other parent if it is known.
- The parent asking for custody must sign the UCCJA affidavit
(20-132).
- The clerk will set a date for the initial hearing. The
parent not asking for custody needs to be served in person
with a “reasonable notice” of the hearing date.
If the other parent is out of the state, the “reasonable
notice” can be sent be certified mail. 20-127
OR:
- An attorney can file a petition for the person asking
for custody without waiting for an intake appointment. Check
with the clerk’s office in your area. They will be
able to tell you if you need to use forms from their office
or if you can come up with your own.
- The UCCJA affidavit must be filed either way. Use the
court’s forms for this.
- As of July 1,1997 temporary custody can be added as part
of a protective order. The UCCJA affidavit will still need
to be filed.
Is mediation required or appropriate? (20-124.4)
- In appropriate cases, the court shall refer custody/ visitation
cases to a dispute resolution evaluation session or “mediation”.
- The court will consider the history of family violence
only after there has been a request for it to be considered.
- In order for mediation to be successful, there has to
be no fear between the parties. Both parties must have equal
bargaining power. Mediation is not appropriate in cases where
there is domestic violence. In these cases, mediation is
strongly discouraged.
What factors will the
court think about when making custody or visitation decisions? (20-124.2[b]; 20-124.3)
Best Interests Standard:
- Courts have to make decisions based upon the best interests
of the child.
- Virginia Code states that the courts shall promise “frequent
and continuing contact with both parents, when appropriate,
and shall encourage parents to share in the responsibilities
of [raising] their children.”
- Parent versus Parent: No presumptions (tender years presumption
is no longer in effect).
- Parent versus Non-Parent: The court must give “due
regard to the primacy of the parent-child relationship”.
[The court has to think about giving custody to one or both
of the parent’s first].
- The court can give custody to a person who is not a parent
upon having clear and convincing evidence that it would be
better for the child.
Legal factors that must be considered by the court:
- Age, physical, and mental condition of the child and the
child’s changing needs.
- Age, physical, and mental condition of each parent.
- Relationship between parents and the child.
- Involvement of each parent in the child’s life.
- Ability of each parent to determine the emotional, educational,
and physical needs of the child.
- Needs of the child. How important are other relationships
with family and extended family members?
- Role each parent has played or will play in raising the
child.
- Likelihood that each parent will actively support the
child’s contact and relationship with the other parent.
- Willingness and ability of each parent to work together
in matters affecting the child.
- Which parent the child would rather be with? The court
must take into consideration the child’s age, understanding
of what is happening, intelligence of the child, and the
child’s experiences. Because being in court be an emotional
hard time for children, a guardian ad litem (lawyer for the
child) can be appointed to speak in the best interest of
the child. Another possibility is for the child to be video
taped instead of speaking in the courtroom.
- Any history of family abuse as defined in 16.1-288.
- Any other factors the court feels is important.
What does the court think about when deciding
visitation rights?
- The court must be sure that both parents have contact
with the child frequently and on a continuous basis, when
suitable.
- If one parent does not trust the other parent with the
child, the court can order supervised visitations.
- Try not to le the abuser’s family or close friends
be the supervisors for visitation.
- Social Services or local family &children’s
services may offer supervision for visitation.
Ways to keep safe during transfers of children:
- School transfers: have the visits begin at the end of
one school day and end the next morning. Example, Dad picks
up child Friday after school and returns child to school
Monday morning.
- Third party transfers: a person who is not the parent
picks up the child from one parent and delivers the child
to the other parent.
- Public transfer: plan to meet in a public place such as
a police station, school, or fast food restaurant at a certain
time to exchange the child. It is a good idea to have a friend
come along to witness the exchange.
Can
the non-custodial parent attend school functions and see
the child’s records? (22-279.4; 20-124.6)
Yes, unless there is a custody order in place that says this
is not allowed.
Can one parent refuse to allow visitation if there is a fear
that the other parent will hurt the child during the visitation?
- Not allowing visitation that the court has ordered is
a crime and the custodial parent can be charged with a violation.
- Not allowing visitation may give the non-custodial parent
a way to ask for a change in custody.
- If the custodial parent believes there
has been new instances of abuse towards the child since visitation
was ordered, a new motion may be filed with the court to
have the visitation stopped or made stricter.
- If there is not custody order yet, parents
may do what they feel is best for the child. However, not
allowing visitation with the other parent without good cause
may put the parent at a disadvantage at the custody hearing.
- There are not easy answers. The best thing to
do is be aware of all the negative consequences and then
decide what you feel is best to keep yourself and your
child safe.
What if a victim of abuse wants to relocate for
safety reasons?
Planning to move in the future?
- Section 20-124.5 requires custody orders to include a
section ordering each parent to give 30 days notice of his
or her intent to move and the new address.
- This section must be in all custody orders, unless good
cause is shown to leave it out. If good cause is not brought
up at the custody hearing, the 30-day notice rule will be
automatically included in the order.
Planning to move now?
- If there is not a custody order in place, the parent can
leave Virginia with the child. If visitation is not given,
and good cause is not shown, it may hurt the parent’s
effort to win custody.
- The court may stop a custodial parent from taking the
child out of Virginia if an order is already in place.
- The court’s decision will be based on the best interests
of the child.
- The custodial parent’s plan to move may qualify
as a change of circumstance enough for the judge to change
visitation rights.
- If moving to a new location will deny visitation right,
many problems can arise.
Originally written by Jill Weiss,
Hunton & Williams
for the Domestic Violence Victim Advocacy Project, 1997.
Updated in 2003. Please talk to a lawyer
for the most accurate and recent information. |
