What Basic Facts Do I Need To Know About Child Custody And Visitation Hearings In Virginia Courts?

Families come in many different shapes and sizes. Perhaps it is no surprise, then, that Virginia courts often take a highly fact-specific approach to resolving child custody and visitation disputes as opposed to imposing bright line rules. The outcomes of these types of proceedings can vary considerably from one another, and it can be difficult to predict how a court might rule on such matters.

In addition to hiring an experienced family law attorney who can help you navigate the myriad of issues that can arise in this area of the law, it can be useful to have an understanding of the basic toolset at a judge’s disposal when deciding such cases. For this entry, I will be focusing on the different types of custody and visitation rights that a court may award, in accordance with the best interests of the child.

Legal Custody v. Physical Custody

Throughout my practice, I have noticed that many parties to custody proceedings do not initially know or understand the difference between legal and physical custody rights. Specifically, these parties tend not to be aware of the concept of legal custody at all, and instead think of custody simply in terms of “who gets the child.”

In Virginia, legal custody determines who gets to make the major decisions in a child’s life. These decisions can include, among others, decisions regarding where the child attends school or church, the child's participation in extra-curricular activities, and medical procedures for the child. A judge may grant sole legal custody to one party, or joint legal custody to multiple parties. In recent years, judges have trended toward granting the parties joint legal custody when feasible (and encourage co-parenting, in general).

Physical custody, in contrast, determines who physically possesses the child at a given time. A court’s allocation of physical custody to each party can vary considerably from case to case, depending on a family’s circumstances. On one end of the spectrum, a court may order that one party have all of the overnight stays with the child in a given year. On the other end of the spectrum, a court may order that both parents share equal time with the child, with exchanges occurring on a routine basis.

A court may craft a custody order broadly to provide the parties discretion in how to handle their affairs, or narrowly to provide the parties with precise rules in handling the child. The parties’ willingness and ability to co-parent the child can factor heavily in the degree of specificity of a court’s order.

Visitation

In situations where the court grants one party the majority of physical custody over a child, that court will often grant the non-custodial party certain visitation rights. Like with custody, courts may exercise great flexibility in crafting a visitation schedule that works with the parties’ specific circumstances.

In some situations, a court may order that a party’s visitation with the child must be supervised by another person. The supervisor can be the custodial party or another individual that is in a good position to lend oversight (such as another family member, friend, neighbor, Department of Social Services employee, etc.). While a court may order a party’s visitation to be supervised for any number of reasons, some factors a court may consider in making this determination may include the party’s substance use or abuse, mental or physical health issues, criminal convictions, founded Child Protective Services (CPS) complaints, or prior misbehavior towards the child or another individual.

Child Custody And Visitation Agreed Orders

Given the unpredictable nature of how a court may choose to resolve a child custody and visitation dispute, there may be advantages to the parties coming to agreements regarding these issues before the court takes up the matter. Indeed, courts tend to prefer that the parties work together to resolve such matters amongst themselves, primarily because the parties possess much more knowledge than the court about their own life situations and family dynamics. In cases where agreements amongst the parties can be made, courts are often willing to incorporate the terms of those agreements into the order.

Even in cases where the parties can only agree on some but not all matters relating to custody and visitation, it can still be worth informing the court of the partial agreement. By removing the number of matters that need to be litigated, the length, cost, and emotional toll of those proceedings might be reduced.

Consult An Attorney

Regardless of your circumstances, it can be worthwhile to consult with an experienced family law attorney to explore your legal options.

Please be mindful that every case has different facts and can implicate different areas of the law. As such, the subject matter contained within this article should not be interpreted as specific legal advice for any individual case. Please contact Curcio & Curcio, PC at 276-466-3377 if you are need of any of the following:

• An attorney in Bristol, VA

• An attorney in Abingdon, VA or the broader Washington County area

• An attorney in Marion, VA or the broader Smyth County area

• An attorney in the broader Southwest Virginia area