Filing for Physical Custody in Virginia

by Elizabeth Rayne
A court may award sole physical custody if it is in the best interest of the child.

A court may award sole physical custody if it is in the best interest of the child.

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Both parents and Virginia courts are primarily concerned with what is in the best interests of the child in a divorce case. Therefore, a parent may be awarded joint or sole physical custody based on this standard. Custody orders, however, may not always be permanent. Should circumstances change, either parent may ask the court to modify the custody order.

Custody Overview

Virginia law distinguishes between physical and legal custody. When a parent has physical custody, the child lives with that parent on a day-to-day basis. On the other hand, legal custody refers to which parent makes the major decisions regarding the child's welfare; this may include decisions about medical care, education or religion. Furthermore, Virginia courts may award sole custody to one parent, meaning that only one parent has both physical and legal custody. The court may also award joint physical custody, meaning that the child lives with both parents, or joint legal custody, requiring the parents to agree on decisions for the child. Similarly, the court may award sole physical custody to one parent and joint legal custody to both parents, or vice versa.

Temporary Custody

Before the final divorce order is in place, either parent may request a temporary custody order, also known as a pendente lite order. To obtain a temporary order, you must submit a request to the Juvenile and Domestic Relations Court in your county. The court will schedule an abbreviated hearing to allow the parents to present evidence as to why it would be in the child's best interest to have a temporary custody order. The court may also award temporary child support and spousal support, if requested. All temporary orders remain in effect until the court orders the final divorce decree, after which the permanent child custody order will take over.

Custody Determinations

Virginia custody determinations are based on what the court determines is in the child's best interest. After the temporary hearing, the court will schedule a hearing to determine permanent custody. The court will consider any relevant information that will help the court decide which parent should have custody. Some of the factors the court will consider include the age and health of the child and parents, needs of the child, ability of the parents to communicate with each other, as well as any history of abuse within the family. Further, if the court determines that the child is mature enough and neither parent has influenced the child, the court will consider the child's preference for custody.

Modification

In some cases, Virginia courts may modify an existing custody order to change which parent has physical custody. Under the law, the court will change a custody order only if circumstances have changed since the time the original order was in place and if it is in the best interest of the child to modify the custody arrangement. For example, if the child is exhibiting signs of behavioral issues or if the parent with sole physical custody starts to abuse alcohol or drugs, the court may consider modifying custody to give the other parent physical custody. To modify custody, you must file a petition with the same court that issued the original order. The court will schedule a hearing, during which you may present evidence as to why the order should be changed.