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Children are often the most important issue during a divorce. In Virginia, there are a variety of laws and regulations regarding custody of a child. Like most issues in family law, choosing the right attorney will provide a better outcome.
Child custody is determined based on what is in the best interest of the child. Although most parents want what's right for their children, sometimes this can become difficult when emotions run high. One parent may wish to punish the other by having full custody. Sometimes there is a financial benefit to the equation. Due to this, the court will examine each unique case to determine what is going to be best for the child.
What Is Child Custody?
Child custody in Virginia consists of two categories: legal custody and physical custody. Parents can have either type of custody:
- Legal custody: This is the right to make choices on behalf of the child's best interest. These choices can involve health, education, and religion.
- Physical custody: This is where the child spends most of their time, or essentially, where the child primarily resides.
Both legal and physical custody can be sole custody or joint custody depending on what is best for the child. Sole legal custody means only one parent can make decisions regarding the child’s well-being. Joint legal custody means both parents are involved in the decision-making process for the child’s well-being.
On the other hand, sole physical custody means the child lives with one parent. If one parent has sole physical custody, the other parent will typically receive visitation time. Joint legal custody means the child lives with both parents.
How Does a Judge Decide Who Gets Custody?
There are a number of factors that a court considers when determining child custody. For the best interest of the child, there are several concerns a judge must address.
The judge will want to know about the following:
What is the age and mental state of the child? Depending on how independent and aware the child is, one parent may be chosen over the other. Appropriate developmental needs will be taken into consideration upon a child custody hearing.
Are both parents mentally and physically fit to take care of the child? In addition to understanding a child's development, a parent must be healthy and able to provide adequate care.
What is the relationship between each parent and their child? A child may relate better to one parent or the other. One parent may also understand the needs of the child better than the other.
Do both parents support the relationship their child has with the other parent? Assuming both parents are adequate and healthy, understanding the ability of each parent to honor the child's relationship with the other is important for healthy development.
Does the child have siblings? Depending on the situation of other children in the home, siblings may be taken into consideration when a judge determines a child custody case. This also extends to non-immediate family members as well.
Is there a history of sexual or physical abuse within the family? A child's safety is the number one priority during any child custody hearing in Virginia. Understanding family dynamics and any possible abuse is crucial.
Does the child have a preference? Many judges will take a child's opinion into serious consideration when determining who receives sole or even partial child custody. However, the child must be old enough and mature enough to state their opinion.
When to File Custody Order Changes
When you’re going through a divorce that involves children, the judge is going to decide on the best possible child custody situation. When they make this decision, they’ll try to decide the option that works in the best interest of the child. Sometimes what was in the best interest of the child then is not the same months or years down the line, which means you may have to modify your custody agreement.
There’s a chance that changing a custody agreement could have an effect on the child’s stability, so a Virginia family law judge will need to see strong evidence of a material change in circumstances from the requesting parent. If both parents agree, the judge is more likely to grant the modification. Examples of material changes in circumstances include, but are not limited to, changes in a parent’s financial or work situation, geographical relocation, changes in the health of a parent, or any circumstance that negatively impacts the child.
In order to receive a modification to your child custody agreement, the parent requesting the change will need to file a motion with the courts. For the state of Virginia, this motion is typically filed with the same Juvenile and Domestic Relations District Court that first ordered the original custody agreement. A judge will then decide if the modifications requested are actually in the best interest of the child.
It can be difficult to figure out the best time to file a motion for a modification because you probably don’t want to disrupt your child’s current routine. It can often take 5–6 months to get a hearing date and your child needs to be at the hearing. If you’re trying not to pull your kid from school, the best time to file for a custody change or modification is in January or February. That way, your child will not have to miss any school since they’ll already be away from school on summer break.
The Law Offices of Daniel J. Miller Can Help
To better understand child custody cases, hiring an experienced family law attorney is imperative. For more information about child custody matters in Virginia Beach, don't hesitate to reach out to the Law Offices of Daniel J. Miller. Our dedicated attorney is here to protect you and your family’s rights during this difficult time.
Call the Law Offices of Daniel J. Miller today at (757) 267-4949 for legal assistance with your child custody issue.