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Custody is the legal responsibility for the care and control of your child. Under Virginia law, this means that you have a legal responsibility towards your child until s/he turns 18 years of age.1 Both parents may share this responsibility. By default, when the parents of a minor child are living together, they are joint “natural guardians” with equal legal powers.2 If they do not live together, custody can be divided up between the parents, which is called joint custody, or given to only one parent, which is called sole custody.3
If the parents are not married, the father may need to first establish his paternity in order to ask for custody.4 For more information on paternity, see How is paternity is established?
If you and the other parent cannot agree on an arrangement, a judge can decide what would be in the best interest of your child. The judge will also decide who should have legal custody and who should have physical custody of your child. Legal custody is the right to make major decisions about your child’s well-being, including matters of education, medical care, and religious development. Physical custody is the right to decide where the child will live on a day-to-day basis.3 The judge should not automatically favor any particular form of custody when making this decision.5
The judge may also award visitation if one parent is given sole physical custody. For more information on that, see What is visitation?
1 Va. Code § 1-204
2 Va. Code § 64.2-1700
3 Va. Code § 20-124.1
4 Va. Code § 20-49.1
5 Va. Code §§ 20-124.2(B); 20-124.3
What is joint custody?
Joint custody can be divided into joint legal and joint physical custody.
Joint legal custody means that both parents share the power to make major decisions about the child’s well-being, including things like which school a child will attend, what medical care the child needs, and the child’s religious upbringing.1
Joint physical custody means that the child will split their time between both parents’ homes. It does not necessarily mean that the child will live with each parent 50% of the time, but rather the time will be split in a way that the judge determines is in the best interests of the child.1
The court may choose any combination of joint legal and joint physical custody that would be in the best interests of the child. This could mean that:
- the child lives with one parent, but both parents have the power to make decisions about the child;
- the child lives with both parents (split-time) and both parents have the power to make decisions about the child; or
- the child lives with both parents, but only one parent has the power to make major decisions about the child.1
If the parents have joint physical custody, either parent can ask the judge to order that the exchange of the child take place at an appropriate meeting place instead of at the home of either parent.2
1 Va. Code § 20-124.1
2 Va. Code § 20-124.3
What is sole custody?
Sole custody means that one parent has the power to make major decisions about the child and the responsibility to be the child’s primary caretaker (meaning the child will live primarily with this parent).1
The other parent may still have the right to visit with the child but will not be able to make major decisions about the child’s education, medical and religious needs. For more information, see What is visitation?
1 Va. Code § 20-124.1
How is paternity established?
The relationship between a parent and child generally has to be proven before that parent can be given custody or visitation by the courts. This may be called “paternity” for a father or “parentage” more generally for any parent.
A mother may establish her relationship with the child by proving that she gave birth to the child.1 For a parent who did not give birth to the child, the relationship with the child may be proven by:
- a DNA test that establishes at least 98% probability of paternity;
- an acknowledgement of paternity signed by both parents;
- adoption paperwork;
- evidence that the parents lived and slept together at the likely time of the conception of the child;
- evidence that the parent agreed to or acknowledged the child having that parent’s last name, whether by words or behavior; or
- the parent claiming the child on a tax return, statement, or any other document filed with a local, state, or federal government or agency.2
1 Va. Code § 20-49.1(A)
2 Va. Code §§ 20-49.1(B), (C); 20-49.4
What is visitation?
Visitation, also known as parenting time, allows a parent to spend time with their child even if the parent is not given any form of custody.1 The judge will decide how often the visits take place, where the visits take place, and whether or not the visits need to be supervised by another adult. At the request of either parent, the judge can order that the exchange of a child take place at an appropriate meeting place instead of at the home of either parent.2
Visitation does not give a parent the right to make major decisions about the child’s well-being, such as education or medical matters. Only a parent with legal custody can make those decisions. A child also will not live with a parent who has visitation rather than physical custody. However, the child may be able to have overnight, weekend, or even longer visits with the parent, depending on what the judge decides.
Non-parents may also be able to get visitation in certain circumstances. For more information, see Can a non-parent get custody or visitation?
1 Va. Code §§ 16.1-278.15(G1); 20-124.2(B1)
2 Va. Code § 20-124.3
What is mediation and who pays for it?
Mediation is a process where both parents will meet to try to come to an agreement on how to divide up custody and visitation, without leaving the decision to the judge. A third party who is neutral, generally called a mediator, meets with the parents to help them reach an agreement.
Virginia law states that in all appropriate cases, the court should order that parents go through mediation before seeing a judge.1 However, if there is a history of family abuse, you can ask the court to skip the mediation process, and go straight to a hearing in front of a judge.2
The goals of mediation include coming up with a schedule of when the child will see each parent, and figuring out how any disagreements between the parents will be handled in the future.3 You do not have to agree to anything you are not comfortable with or do not want. If an agreement cannot be reached, a hearing will be scheduled in front of a judge.
You will not have to pay for mediation in any custody, support or visitation case. It is paid for by the state.2
1 Va. Code §§ 20-124.4; 20-124.2(A)
2 Va. Code § 20-124.4
3 Va. Code § 20-124.2(A)
What are the pros and cons of getting a custody order?
Getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- The right to make decisions about your child
- The right to have physical custody of your child (to have your child live with you)
Without a custody order, it is possible that you may not have these legal rights, even if you are the parent who takes care of the child every day.
Also, your legal rights without a custody order may depend on whether or not you are married to the other parent.
However, there are reasons people choose not to get a custody order from a court:
- Some parents decide not to get a custody order because they don’t want to get the courts involved, and have an informal agreement that works well for them.
- Some parents may think going to court will make the other parent mad, or they are worried that the court may award custody or visitation to the other parent.
If you have concerns, you may want to talk to a lawyer or a local domestic violence advocate to get more information and help in figuring out what is the best decision for you. You can find links and contact information for resources in your area on our VA Advocates and Shelters page and the VA Finding a Lawyer page.
Child support considerations: Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. See Who can get child support? for more details.
We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find legal help by clicking on the VA Finding a Lawyer page.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to VA Finding a Lawyer to seek out legal advice.
