Four Child Custody Myths in Virginia

It is not uncommon for parents facing a custody and visitation dispute to enter it with preconceived notions of what the court will and should consider in deciding their case. Upon sitting down with a family lawyer for their initial consultation, these parents usually start off by listing the facts and circumstances they believe to be most important to the custody or visitation issues involved. Although many of the facts these parents think are important will affect the court’s determination, many others will actually have less of an impact in their case than they might hope for.

In determining the best interests of the child for purposes of determining custody and visitation, Virginia courts are bound to consider the factors listed in Virginia Code Section 20-124.3. Though the factors listed in the statute are not exclusive, they pretty accurately capture the issues most influential on the court’s determination.

In my experience, parents entering custody or visitation disputes in Virginia are often surprised, disappointed or elated to learn that the following factors are not only absent from the best interests of the child statute, but are given much less weight by the court than one of the parties might hope for or assume:

1. Gender of the Parent. There is no presumption in favor of the mother of the child in Virginia, and the bias in favor of the mother has largely fallen away. The standard used by the court in determining custody and visitation is the best interests of the child, and the best interests of the child are not defined by the gender of the parent.
2. Financial Stability. One parent’s financial instability, irresponsibility, or inability to financially support a child on their own, is not dispositive of a custody or visitation result. This is exactly why child custody, visitation and support hearings are bifurcated in Virginia—courts first decide custody and visitation, and then determine child support. Naturally, there are extreme examples of unstable or irresponsible financial behaviors which may influence a court’s decision. However, such occasions are rare.
3. Who is Residing in the Home: Parents typically find themselves litigating custody or visitation after they have physically separated from one another. Accordingly, the likely scenario is that one parent continues to reside in the home, while the other parent has moved to a new or temporary residence. The parent who remains in the home does not necessarily have an inherent advantage unless, for example, the other parent is residing somewhere far away which (a) makes visitation difficult, (b) would require the children to change school districts, and/or (c) would completely disrupt the lives of the children. Even so, and even despite a potential disruption to the children’s lives, the court can find that the best interests of the children require allowing a relocation with the parent who has moved.
4. Fault. The reason for the dissolution of the relationship between the parents does not necessarily determine who should have custody of the children and who should be granted visitation privileges—unless, for example, the reason for the breakup is something like domestic violence, substance abuse, criminal acts threatening the safety of the family, etc. Parental actions which might constitute fault-based grounds for divorce are only relevant to a court in its custody and visitation determination if they either (a) threaten the safety of the children, or (b) call into question a parent’s judgment or ability to make day-to-day decisions for the children, or to care for the children. A spouse’s extramarital affairs, for example, do not in-and-of themselves make that person a bad parent. If the court were to allow fault to impact its determination on custody or visitation without good reason founded in the best interests of the child, it could potentially and unreasonably punish a child as a result of their parent’s act.

Whether you are contemplating petitioning for divorce, custody or visitation, are considering requesting the court to modify an existing custody or visitation order, or already have a pending custody or visitation case, be sure to consult with an experienced family law attorney. The child custody lawyers at Livesay & Myers, P.C. have years of experience negotiating and litigating custody and visitation cases in the courts of Northern Virginia. Contact us to schedule an appointment today.

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