How Does Child Custody Work in Virginia?

Ending a marriage is a stressful and emotional process, and it is not uncommon for couples to disagree on the terms of their divorce. One of the most contentious issues that divorcing parents must address is child custody. Figuring out who the child will live with and how they will split their time between two homes can be challenging. If the parents can’t agree on an arrangement that suits them both and prioritizes their child’s best interests, they’ll have to take the matter before a judge, who will determine child custody for them.

Types of Child Custody in Virginia Beach

There are two types of custody: physical custody and legal custody. Physical custody is a parent’s right to physically reside with their child, while legal custody is a parent’s right to make decisions about their child’s welfare, including medical care, education, and religious upbringing.

In Virginia, the statutes direct judges to consider joint custody. That way, the child gets to spend ample time with both parents, and both parents get to have equal decision-making authority over the child.

Sometimes a judge will award sole physical custody to one parent, while the other parent will have visitation rights and share legal custody of the child with the custodial parent. For instance, the judge may agree that it is in the child’s best interests to grant physical custody to one parent if the other parent lives far away. Still, the custodial parent will have to consult the non-custodial parent when making major decisions for the child.

It is rare for judges to grant sole physical and legal custody to one parent. For a parent to be granted sole legal custody, they must convince the judge that it is in the child’s best interests.

How Is Child Custody Determined?

When determining custody, the judge’s primary consideration will be the best interests of the child (§ 20-124.2 (B)). To determine the child’s best interests, the judge will weigh a range of factors, which are outlined in (§ 20-124.3):

  • The child’s age, physical condition, and mental condition
  • Each parent’s age, physical condition, and mental condition
  • Each parent’s relationship with the child and their ability to meet the child’s emotional, intellectual, and physical needs
  • The child’s needs
  • The role that each parent has played in the child’s upbringing
  • Each parent’s willingness to support the child’s relationship with the other parent
  • Each parent’s willingness to foster a relationship with their child
  • Each parent’s willingness and ability to cooperate with the other parent
  • The child’s preference, depending on their age
  • Any history of abuse or sexual abuse

Many people mistakenly believe that judges give preferential treatment to a child’s mother when determining custody in heterosexual divorces, and while that may have been true in the past, Virginia judges do not favor one parent over the other in custody battles today.


Virginia law requires “frequent and continuing contact for both parents” when appropriate. For that reason, if one parent is granted sole physical custody, the custody arrangement must include a visitation schedule so that the child can spend time with the non-custodial parent. Visitation is also referred to as parenting time in Virginia. Visitation schedules can take many forms.

For example, the non-custodial parent may have visitation every other weekend, on holidays, or during summer vacation. The visitation schedule will also include instructions for pick-up and drop-off. Judges prefer it if parents can collaborate on a visitation schedule that suits everyone, but if the parents can’t come to an agreement, the judge will have to create one for them.

Contact a Virginia Beach Family Lawyer

If you are going through a divorce and have minor children with your spouse, contact a Virginia Beach family law attorney at Pincus Goodman, P.C. We may be able to help you negotiate a favorable settlement agreement with your spouse and create a custody arrangement that is based on your child’s best interests. If necessary, we will fiercely protect your parenting rights and advocate for your interests in court. If your child’s circumstances have changed, we can also help you modify an existing child custody order. Contact us at (757) 301-9634 for a confidential consultation today.


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