Child Custody and Visitation
Virginia law requires child custody to be determined by the judge based on the best interests of the child. Generally, Virginia law breaks child custody determinations into three broad categories: legal custody, physical custody, and visitation. Legal custody refers to the parent who has the authority to make major decisions about the rearing of the child. Physical custody refers to the parent with whom the child resides. Visitation refers to the rights a parent without physical custody has regarding when and how he or she can see the child.
In awarding legal and physical custody and/or visitation, the judge must consider such factors as:
- The age and the physical and mental condition of the child;
- The age and the physical and mental condition of each parent;
- The relationship between the child and each parent;
- The role each parent has played and will play in the upbringing of the child;
- Whether either parent has denied the other parent access to the child (except where justified such as in cases of abuse)
- The preference of the child, if the court determines the child to be of reasonable intelligence, understanding, age, and experience to express such a preference.
In practice, the judge will often consider whether the child is currently living with one parent in a stable environment and whether upsetting that arrangement will negatively affect the child. Generally, a judge will allow both parents to have either custody or visitation rights, but in cases involving abuse, an order of “no visitation” can be entered against the abusive parent. In many cases, a judge may appoint a social worker to investigate and evaluate each home and each parent. A judge may also appoint an attorney known as a Guardian ad Litem (GAL) to represent the child and make recommendations to the court regarding custody and visitation. A GAL is not an attorney for either party and thus does represent their interests.
The non-custodial parent, that is the parent with whom the child does not primarily live, is responsible for paying child support. Child support obligations begin when a petition for child support is filed. Child support typically ends upon one of the following conditions:
- The child is 18 and graduated from high school;
- The child is 19 and full-time high school student living in parent’s home
- The child is on active duty in the military;
- The child is married;
- The child is willingly living separately and independently from their parents and/or guardians and able to support himself or herself.
Child support must be paid by the non-custodial parent even if that parent does not have visitation rights. Visitation rights are determined with the child’s safety in mind and are not legally tied to support obligations.
Amount of Child Support
Virginia has statutory guidelines for determining how much a non-custodial parent will be required to pay in child support. Generally, the amount is calculated first as a percentage of available gross (before taxes) monthly income. Then, the court may make adjustments to this amount by figuring in such factors as:
- whether the non-custodial parent is also paying spousal support;
- whether the non-custodial parent is supporting other children;
- whether the non-custodial parent has possession of the child for more than 90 days of the year.
Modification of Child Support and/or Child Custody Orders
Child support and child custody orders are always subject to modification.
Virginia law requires that a parent who petitions the court for a modification of a custody order to prove both that there has been a material change in circumstances and that it is in the child’s best interest for the custody order to be modified. Some examples of a material change in circumstances might include:
- One of the parents gets remarried;
- One of the parents gets a new job;
- One of the parents moves;
- One of the parents is convicted of a crime
For modification of child support, the parent petitioning for a modification must also prove a material change in circumstances. If the parent with the child support obligation loses his or her job and is forced to take a lower-paying job, the court could modify the child support payments to be lower. But remember that a parent who voluntarily takes a lower-paying job will not be entitled to a reduction in child support payments. In a situation of deliberate underemployment, the court can calculate support based on the income the parent had in the higher-paying job. Changes in the cost of insurance or childcare may also be the basis for a modification in child support.
Termination of Parental Rights
Termination of parental rights is a very serious matter that Virginia courts will not order without clear and convincing evidence. A parent who seeks to have his or her child’s other parent’s rights involuntarily terminated must prove that the other parent has abused or neglected the child and that it is unlikely that the circumstances would change in a reasonable amount of time.
Remember that when a parent’s rights are terminated, that parent no longer has a responsibility to pay child support or to provide care for the child.
While my office is located in Chesapeake, I handle family law cases in all of the Hampton Roads area. This includes Norfolk, Portsmouth, Virginia Beach, and Suffolk.