11.7 Child Custody and Visitation

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

11.7 CHILD CUSTODY AND VISITATION

11.701 Different Forms of Custody. The court must consider and may award joint legal, joint physical, or sole custody, and there must be no presumption in favor of any form of custody. ⁶⁷ Joint custody can mean several different things. It can be joint legal custody where both parents share joint responsibility for the care and control of the child and joint decision-making authority even though the child's primary residence may be with only one parent. Joint custody can also mean joint physical custody where both parents share physical and custodial care of the child. It can also be any combination of joint legal and joint physical custody that the court deems to be in the best interests of the child. ⁶⁸ For example, the rare situation may arise where parents share physical custody, but, due to their inability to otherwise communicate and make joint decisions in the best interest of their child, one parent has sole legal custody. Sole custody is when one parent retains responsibility for the care and control of the child and has primary decision-making authority. ⁶⁹

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11.702 Best Interests of the Child. When custody or visitation ⁷⁰ is an issue, courts have the goal of assuring that the children have frequent and continuing contact with both parents and encouraging both parents to share the responsibility of raising their children. However, the court's decision ultimately comes down to what is in the children's best interests. ⁷¹

When determining the best interests of a child, courts consider the factors in Va. Code § 20-124.3:

1.	The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
2.	The age and physical and mental condition of each parent;
3.	The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
4.	The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
5.	The role that each parent has played and will play in the future in the upbringing and care of the child;
6.	The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7.	The relative willingness and demonstrated ability of each parent to maintain a close and continuing

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