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FAQs on Custody

The articles on this site are not intended to give legal advice and do not purport to do so. Our intention is to provide general information pertaining to legal topics. If you are considering separation or believe that your spouse is considering it, you should seek a confidential consultation with a good experienced family law attorney.

What is custody?

Custody refers to guardianship, the right to control the day to day care and upbringing of the child.

What does the law say generally about custody?

It says that the parents of legitimate children born in wedlock are the natural guardians of those children. That each parent has equal power and authority with regard to the child.

What if a parent dies?

The surviving parent becomes the natural guardian of the children without a court order.

How do custody cases end up in court?

Most often custody disputes arise when parents decide to separate or when the parents were never married. In these cases, courts are called upon to award custody, based upon the law and the facts as they are presented in court.

Where would I file for custody?

Unless you are filing suit for divorce and asking for custody incident to the divorce proceedings, custody cases are usually determined by the Juvenile and Domestic Relations District Court. Generally, custody/visitation issues are handled initially in the locality where the child and at least one parent live currently and have lived for the previous six months.

Can someone other than a parent file for custody?

Yes. Although the majority of disputes are between the parents of the child, anyone with a legitimate interest may seek custody or visitation.

What if I want to change the visitation?

Assuming that something has changed since the old order was signed, once a court enters an order, that court retains jurisdiction over the case, until the case is transferred to another jurisdiction. Bear in mind that once a court enters an order deciding the case, you have to be able to show that something has changed since the order was entered and that the change warrants changing the court order. You do not have the right to re-litigate issues that have already been decided.

What if we've moved out of that jurisdiction?

The originating court continues to have jurisdiction, until the case is transferred to another jurisdiction.

Is it a crime for one parent to withhold the child from the other?

Once a court has made an order of custody/visitation, violation of the order, by withholding the child from visitation or withholding a child from the custodial parent may be a criminal act, if the court finds it was done wrongfully and intentionally in violation of the court order.

What is the difference between joint custody and sole custody?

Virginia Courts may award joint or sole custody, but must give primary consideration to the "best interests" of the child. It has been said that the court must award custody to "provide children with greatest opportunity to fulfill their potentials as individuals..." Virginia courts no longer favor sole custody arrangements  unless such an arrangement is clearly in the best interest of the child or the parents agree to sole custody. Joint custody means that both parents have responsibility for the care and control of the child and the authority to make decisions concerning the child; both parents share physical custody for the child or  any combination of the above. Sole custody means that one person has responsibility of the care and control of the child and has primary decision making authority.

What does the court consider in deciding what is best for the child?

The focus of the court is the "best interest" of the child; the court wants to ensure frequent and continuing contact with both parents. The factors the court considers are set out in the statutes:

1. the age and physical andmental condition of the child,

2. the age and physical and mental condition of each parent,

3. the relationship between each parent and each child;

4. the positive involvement of the parent in the child's life and the parent's ability to assess and meet the emotional, intellectual and physical needs of the child;

5. the child's needs, including important relationships (siblings, peers and extended family);

6. the role each parent has played and will play in the upbringing and care of the child,

7. the willingness of each parent to actively support the child's contact and relationship with the other parent;

8. the willingness and ability of each parent to cooperate in matters affecting the child;

9. the willingness and ability of each parent to maintain a close and continuing relationship with the child;

10. the preference of the child, if the court determines that the child is able to express such a preference;

11. any history of family abuse; and

12. such other factors as the court may determine are important.

13. Failure to cooperate in visitation and other matters affecting a child can be a factor in a court's consideration of a change of custody.

Do I have to have a lawyer to file for custody?

No. You do not have to have a lawyer to file for custody. However, if custody is important to you, you should at least talk to a lawyer about your situation and get advice. It can be helpful to have someone on your side that knows the rules of court and how to use the system for your benefit. We have been helping families in crisis and assisting parents in handling custody and visitation disputes for over 30 years.

Attorney Virginia Dante Perry has written a special report entitled How to Lose Custody; 10 Stupid Mistakes Parents Make . If you are seeking to resolve your custody issues, you need to read this special report. This special report is available to you free of charge just for visiting our website. Go to the Links page and cick on the title for a downloadable version of this report. We offer this free for your personal use. You also need to read Attorney Perry's special reports entitled Why You Need a Good Divorce Lawyer and How to Choose a Good Divorce Lawyer. Again, go to the Links page and click on the title of interest for a downloadable version of these reports. Maybe your aren't married and you are asking yourself why you need publications about a divorce lawyer. Well, it's simple. If you are involved in a potential custody dispute, you need a good family law attorney. Attorney Perry's special report on why you need a good divorce lawyer could also be called Why You Need a Good Family Law Attorney  and her special report on how to choose a good divorce lawyer could be called How to Choose a Good Family Law Attorney. Again, go to the Links page and click on the title of interest for a downloadable version of the reports.

If after reading the foregoing questions and answers or after reading the free downloadable reports, you would like more information, call (804) 520-7060 for a confidential appointment with Attorney Virginia Perry to discuss your unique situation. Or if you are still reluctant to actually see a lawyer, click here to contact us for further information.

Copyright (c) 2007 by Perry Law Group, PC. Revised 2009. All rights reserved. You may reproduce materials from this site for your own personal use and for non-commercial distribution, provided you include this statement: This copyright material is reproduced from the VA Law Talk website with the permission of Perry Law Group, PC.