Child Custody – What’s the Legal Standard?

Being involved in a child custody and visitation case can be an emotionally draining process for a parent or interested third party, such as a grandparent. Often one of the first questions my clients ask is, "How does the court make its decision in these cases?" The "big picture" answer is that the court's primary focus is determining what is in the "best interests of the child."

To give courts further guidance on how to reach a custody and visitation decision that is in the best interests of the child, Virginia law provides courts with a list of factors that it must consider in making a determination. The facts and circumstances of each case determine how important one factor is over another, and the list of factors is not exhaustive, as the last factor permits the court to consider "such other factors as the court deems necessary and proper to the determination." The code section outlining the custody and visitation factors is listed below:

§ 20-124.3. Best interests of the child; visitation.

In determining best interests of a child for purposes of determining custody or visitation arrangements including any pendente lite orders pursuant to § 20-103, the court shall consider the following:

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.

The judge shall communicate to the parties the basis of the decision either orally or in writing.