6.7 Child Custody and Visitation/‌parenting Time

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

6.7 CHILD CUSTODY AND VISITATION/?PARENTING TIME

6.701 In General.

The goal in custody and visitation cases is to preserve the dignity and resources of the family and to ensure that children have frequent and continuing contact with both of their parents; in other words, the goal is the best interests of the children. ³⁷⁵⁵ There is no presumption favoring either parent in a custody or visitation proceeding. ³⁷⁵⁶ In an effort to take the adversarial nature out of the word "visitation," the Virginia General Assembly revised section 20-124.2 of the Virginia Code in 2017 to provide that the court may use the phrase "parenting time" to be synonymous with the term "visitation" in ordering the division of time between the parties. ³⁷⁵⁷

Counsel should advise the client that all child custody and visitation matters are to be governed by the "best interests" ³⁷⁵⁸ of the child and not those of the parent, and it is important for counsel to help clients establish realistic expectations. If parents are unable to reach an agreement concerning their children on their own, they should be advised to consider seeking professional advice from a child development specialist or participating in family counseling to try to reach accommodations that will serve the children's best interests. Clients should also be counseled about the availability of alternative dispute resolution methods, such as mediation. Section 20-124.2(A) of the Virginia Code encourages the use of mediation over litigation. ³⁷⁵⁹ However, mediation is not recommended if there has been a history of family abuse. ³⁷⁶⁰

Counsel should advise clients that their anger toward the other parent can have adverse effects on the child and that the client should separate the relationship with the child from the unhappy relationship with the other parent. For example, counsel should help the client to find ways of communicating with the other parent that do not involve using the child as a go-between. Clients can use email, text messages, or other types of social media and software to avoid having to have personal contact with the other parent. If clients place their children in the middle of the divorce proceedings, it can be very detrimental both to their children and to the court's determination of what is in the best interests of the children. The key to building a successful parent-child relationship after a divorce is flexibility between the parties.

6.702 Jurisdiction.

Section 20-107.2 of the Virginia Code grants the circuit court jurisdiction over the custody and visitation of children upon granting a divorce. In addition, 20-107.2 authorizes the court to award the support of a child over the age of 18 who meets the requirements set forth in section 20-124.2(C), including an order that either party or both parties provide health care coverage or cash medical support or both. ³⁷⁶¹

6.703 Pleadings.

In a child custody or visitation claim in a divorce action, the complaint for divorce should identify the children either born to the parties or adopted during the marriage, including their names, ages, and dates of birth, and should contain a statement that informs the court whether the children are living with their mother or father or both at the time the complaint for divorce is filed. The complaint should allege that the party seeking custody is a fit and proper person to have the type of custody or visitation requested. The prayer for relief should ask the court to grant both temporary and permanent legal and physical custody of the children to the party making the request. The plaintiff will also need to file an affidavit in compliance with section 20-146.20 of the Virginia Code (UCCJEA). ³⁷⁶²

6.704 Statutory Factors for the Best Interests of the Child.

When the parents are involved in a custody or visitation dispute and are unable to resolve the dispute by agreement, the court is asked to decide the matter. Whenever any Virginia court determines custody or visitation arrangements, it must consider the statutory provisions of section 20-124.3 of the Virginia Code to determine what is in a child's best interests. In a custody or visitation ruling, the judge must communicate to the parties the basis of the decision either orally or in writing. Except in cases of consent orders for custody and visitation, this communication shall set forth the judge's findings regarding the relevant statutory factors, which include:

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 and 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 relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express that preference; ³⁷⁶³

9. Any history of family abuse; ³⁷⁶⁴ sexual abuse; child abuse; or an act of violence, force or threat ³⁷⁶⁵ that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds a history of family or sexual abuse, the court may disregard any failure of a parent to actively support the child's contact and relationship with the other parent; and

10. Any other factors as the court deems necessary and proper to the determination.

6.705 What Does "Best Interests of a Child" Mean?

Although Stadter v. Siperko ³⁷⁶⁶ involves a visitation dispute between a parent and a third party instead of custody, it is rare that an appellate court expresses its complete thought process when a visitation case is before it. It is strongly recommended that counsel read the opinion to better understand how courts go through their analysis to describe "the best interests of a child."

6.706 Types of Custody Arrangements.

Because of the variety of terms clients use to describe child custody arrangements, it is very important that counsel (i) make an effort to understand what the client means when referring to a particular type of child custody and (ii) define the type of custodial arrangement in any order or decree drafted by counsel.

A. Sole Custody.

"Sole custody" means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child. ³⁷⁶⁷

B. Joint Custody.

"Joint custody" means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the...