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

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:

1. a DNA test that establishes at least 98% probability of paternity;
2. an acknowledgement of paternity signed by both parents;
3. adoption paperwork;
4. evidence that the parents lived and slept together at the likely time of the conception of the child;
5. evidence that the parent agreed to or acknowledged the child having that parent’s last name, whether by words or behavior; or
6. 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

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)

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.
 

Non-parents may be able to seek custody of or visitation with a minor child if the judge finds them to be a “person with a legitimate interest.”¹ The law defines a person with a legitimate interest to include, but not be limited to:

• grandparents or step-grandparents;
• current or former stepparents;
• blood relatives;
• other family members; and
• any other person who has a similar relationship with the child, and the court determines that s/he has a legitimate interest in the child.¹

A parent whose parental rights have been terminated cannot be a person with a legitimate interest in the custody or visitation of a child except in certain limited circumstances where:

• the child is at least 14 years old;
• the child’s adoptive parents died or had their rights to the child terminated; and
• the child is in the custody of a local board of social services.¹

A non-parent also cannot be a person with a legitimate interest if their relationship to the child goes through a parent whose rights have been terminated or who has been found to have committed one of the following crimes that resulted in the conception of the child:

1. rape (see subsection A of 18.2-61);
2. carnal knowledge of a child between 13 and 15 years of age (see subsection A of 18.2-63); or
3. incest (see subsection B of 18.2-366).²

Even though a non-parent may be able to apply for custody, the natural parents of the child will be given preference in a custody dispute, as long as they are considered able (“fit”) to take care of the child.³ However, a grandparent may be able to get visitation with a child even if both parents object. For more information see I am the child’s grandparent. Can I get visitation?

¹ Va. Code §§ 20-124.1; 16.1-278.15(B)
² Va. Code § 20-124.1
³ Va. Code § 20-124.2(B)

When making a decision about custody or visitation, the judge must take into account any history of family abuse, sexual abuse, child abuse, or an act of violence, force, or threat that has taken place within the past ten years.¹

However, this does not mean that the parent who committed abuse will automatically be denied custody; it just means that the judge has to consider the abuse in addition to other relevant facts. If the judge does decide to grant visitation to the abuser, you can ask that the visitation be supervised in order to better protect yourself and your child.

There are certain circumstances, however, under which a parent who committed violence can be denied the chance to ask for custody or visitation. You can ask the judge to prohibit the abuser from filing a petition for custody or visitation for up to ten years if the judge finds that:

1. it is in the best interests of the child; and
2. one of the following is true:
   • the abuser was convicted of committing one of the following crimes against his/her child, any child who lived with him/her at the time of the crime, or against the child’s other parent:
     1. murder or attempted murder;
     2. voluntary manslaughter or attempted voluntary manslaughter; or
     3. conspiracy or solicitation to commit any of the above crimes offense; or
   • the abuser was convicted of committing one of the following crimes against his/her child or a child who lived with him/her at the time of the crime:
     1. felony assault that resulted in serious physical injury; or
     2. felony sexual assault.²

¹ Va. Code § 20-124.3(9)
² Va. Code § 20-124.2(E)

As part of your protective order, the judge can award you temporary custody of your child, which would last until the protective order expires.¹ For more information on protective orders, please see VA Protective Orders (for Family Abuse).

¹ Va. Code § 16.1-279.1(A)(10)

A judge will make a decision about custody based on what s/he thinks is in your child’s best interest.¹ The judge will look at any factor that s/he thinks is important in making this decision. Some of the things a judge will look at include:

• the age and physical and mental condition of the child;
• the age and physical and mental condition of each parent;
• the relationship existing between each parent and each child, and the ability of each parent to meet the emotional and physical needs of the child;
• the needs of the child, including other important relationships in the child’s life such as siblings, friends and other family relatives;
• the role that each parent has played in the child’s life, and the role each parent will play in the future;
• the likelihood that a parent will actively support the child’s relationship with the other parent, which includes looking at whether a parent has denied the other parent access to the child in the past, without good reason for doing so;
  • Note: This factor might not be considered if there is a history of family abuse, sexual abuse, child abuse, or an act of violence, force, or threat that has taken place within the past ten years;
• the willingness and ability of each parent to maintain a close and continuing relationship with the child;
• the ability of each parent to cooperate with the other parent in resolving disputes regarding matters that affect the child;.
• the preference of the child, if the child is old enough to understand and express such a preference;
  • Note: The court will consider any likelihood of improper influence by one or both parents on the child’s decision; and
• any other factor the court feels is necessary and proper in order to make a decision about custody.²

¹ Va. Code § 20-124.2(B)
² See Brown v. Burch, 519 S.E.2d 403, 408 (Va. App. 1999); Va. Code § 20-124.3

The judge will take into consideration the role that each parent has played in the child’s life, and the willingness of each parent to maintain a close and continuing relationship with the child.¹ If you have moved away from your child for a significant period of time, it may affect how the judge views these two factors.

However, it is important to remember that a judge will take into account a history of family abuse and sexual abuse.² Therefore, if you have moved away to escape abuse, you can explain to the judge why it was necessary for you to leave the home where your child currently lives. You may strongly consider getting a lawyer in this situation. Go to VA Finding a Lawyer for more information.

¹ Va. Code § 20-124.3(5) & (7)
² Va. Code § 20-124.3(9)

You do not need a lawyer to file for custody.  However, it is highly recommended that you get a lawyer if you can, especially if the other parent has one.  Custody cases can be complicated, and it is helpful to have someone guide you through the process.

If you cannot afford a lawyer, you may be able to find free or low-cost legal help in your area on the VA Finding a Lawyer page.

Even if you plan on representing yourself, you may want to consider having a lawyer review your papers before you file them.  Avoiding mistakes as much as possible will help to save time and money, and can improve your chances of success.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

Virginia law requires that the judge communicate the reasons for his/her decision, either in person or in writing. If the judge did not do this at the hearing, you may want to contact his/her court assistant to ask for an explanation in writing.¹

However, the judge does not have to explain every aspect of his/her decision-making process in detail, only the main reasons for the decision.²

¹ Va. Code § 20-124.3
² See Kane v. Szymczak, 585 S.E.2d 349, 353 (Va. App. 2003)

Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.  

You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.

Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.

The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:

• problems with service of process;
• referrals to mediation and a parenting class;  
• temporary custody and visitation orders; and
• pretrial motions.

During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.

For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.

If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.  

You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:

• The other parent gets sent to jail or charged with child abuse or neglect;
• The other parent is not following the custody and visitation order; or
• Your child’s needs change in a big way.

You can file to have your current custody order changed (modified) if there has been a substantial (material) change in circumstances since your most recent order was issued.¹ Generally, you would file a petition for modification in the juvenile and domestic relations district court that issued your original custody order. You would have to arrange for the abuser to be served with the petition so that s/he has the chance to appear in court. When making a decision about whether or not to change the order, the judge will decide whether there has, in fact, been a change in circumstances and whether or not changing the order will be in the best interests of the child.²

A “material change in circumstances” may include but is not limited to:

• one parent intentionally keeping the other parent from visiting with the child without good reason;¹
• changes in the child’s life, such as special educational needs or health needs;
• negative changes in the life of the parent who has custody, which will impact the welfare of the child; or
• positive changes in the life of the parent without custody, such as remarriage, creation of a stable home environment, and increased ability to provide emotional and financial support for the child.²

Note: If either parent is a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, Space Force, National Guard, or the reserves, and the reason for the modification request is his/her deployment, then it can be requested that the petition be reviewed more quickly by the judge.¹

¹ Va. Code § 20-108
² See Keel v. Keel, 303 S.E.2d 917 (Va. 1983)

Custody orders in Virginia are supposed to include a condition that if either parent wants to “relocate,” s/he has to give the other parent and the court 30 days advance written notice of the intended move.  The notice has to include the intended change of address, unless the judge says you do not have to provide your address.¹  Note: The law does not indicate how far the move must be in order to be considered a “relocation.”  If you are not sure if this applies to your situation, please get advice from an attorney.  You may also want to ask an attorney for advice on the best way to keep a record of the notice you send to the other parent (for example, perhaps sending it return-receipt requested, etc.)  Upon receiving the notice, the other parent may object to your intended move, especially if it would interfere with his/her time with the children.  In that case, you may have to ask the court to change the order to allow you to move and to modify the visitation schedule so that the move will not violate the other parent’s visitation order. 

The court will decide whether or not to allow the child to relocate based on the best interests of the child.  For more information on how to change your custody order, please see If a custody order is already in place, can I get it changed?  Warning: If your custody order says you cannot take your child out of the state or if by moving out of state, you violate the visitation rights of the other parent, you could possibly be charged with contempt of court, parental kidnapping, or both.² 

Note: If you are in danger and need to leave the state to protect yourself or your child, you may be able to file for temporary emergency custody in the state that you flee to.  Getting a temporary order will mean that you have legal custody of your child for the time being, but the abuser could be notified that you applied for custody in that state, which might make it easier for him/her to locate you.  For more information about how to get this, see Can I get temporary emergency custody?  Please talk to a lawyer before leaving the state if at all possible.  Go to VA Finding a Lawyer for free and paid lawyers.

¹ Va. Code § 20-124.5
² Va. Code §§ 18.2-49.1; 18.2-47(D)