Custody is the legal responsibility for the care and control of your child (under 18, generally). Custody could be divided up between the parents (joint custody) or given only to one parent (sole custody).¹ There are two types of custody: legal and physical.

Legal custody is the right to make major decisions about your child’s well-being, including matters of education, medical care and religious development. Physical custody decides who the child will live with on a day-to-day basis.

¹ Va. Code § 20-124.1

Sole custody means that one parent has the power to make major decisions about the child and the responsibility to be the child’s primary caretaker (meaning the child will live primarily with this parent).¹

The other parent may still have the right to visit with the child but will not be able to make major decisions about the child’s education, medical and religious needs.  For more information, see What is the difference between custody and visitation?

¹ Va. Code § 20-124.1

Mediation is a process where both parents will meet to try to come to an agreement on how to divide up custody and visitation, without leaving the decision to the judge. A third party who is neutral, generally called a mediator, meets with the parents to help them reach an agreement.

Virginia law states that in all appropriate cases, the court should order that parents go through mediation before seeing a judge.¹ However, if there is a history of family abuse, you can ask the court to skip the mediation process, and go straight to a hearing in front of a judge.²

The goals of mediation include coming up with a schedule of when the child will see each parent, and figuring out how any disagreements between the parents will be handled in the future.³ You do not have to agree to anything you are not comfortable with or do not want. If an agreement cannot be reached, a hearing will be scheduled in front of a judge.

You will not have to pay for mediation in any custody, support or visitation case. It is paid for by the state.²

¹ Va. Code §§ 20-124.4; 20-124.2(A)
² Va. Code § 20-124.4
³ Va. Code § 20-124.2(A)

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised.  If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits.  We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure.  Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised.  Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to VA Finding a Lawyer to seek out legal advice.
 

Generally, both parents are entitled to seek sole or joint custody from the court. However, if the parents are unmarried, the father must first establish paternity before seeking legal custody of his child.¹

Non-parents who are “persons with a legitimate interest” may also be able to seek custody or visitation of a minor child.² A person with a legitimate interest includes, but is not limited to:

• grandparents;
• step-grandparents;
• step-parents;
• former step-parents;
• blood relatives and other family members; and
• any other person who has a similar relationship with the child, and the court determines that s/he has a legitimate interest in the child.³

Note: Even though a non-parent may be able to apply for custody, the natural parents of the child will be given preference in a custody dispute, as long as they are considered fit (able) to take care of the child.²

¹ Va. Code § 20-49.1
² Va. Code § 20-124.2(B)
³ Va. Code § 20-124.1

When making a decision about custody or visitation, the judge must take into account any history of family abuse, sexual abuse, child abuse, or an act of violence, force, or threat that has taken place within the past ten years.¹

However, this does not mean that the parent who committed abuse will automatically be denied custody; it just means that the judge has to consider the abuse in addition to other relevant facts. If the judge does decide to grant visitation to the abuser, you can ask that the visitation be supervised in order to better protect yourself and your child.

There are certain circumstances, however, under which a parent who committed violence can be denied the chance to ask for custody or visitation. You can ask the judge to prohibit the abuser from filing a petition for custody or visitation for up to ten years if the judge finds that:

1. it is in the best interests of the child; and
2. one of the following is true:
   • the abuser was convicted of committing one of the following crimes against his/her child, any child who lived with him/her at the time of the crime, or against the child’s other parent:
     1. murder or attempted murder;
     2. voluntary manslaughter or attempted voluntary manslaughter; or
     3. conspiracy or solicitation to commit any of the above crimes offense; or
   • the abuser was convicted of committing one of the following crimes against his/her child or a child who lived with him/her at the time of the crime:
     1. felony assault that resulted in serious physical injury; or
     2. felony sexual assault.²

¹ Va. Code § 20-124.3(9)
² Va. Code § 20-124.2(E)

A judge will make a decision about custody based on what s/he thinks is in your child’s best interest.¹ The judge will look at any factor that s/he thinks is important in making this decision. Some of the things a judge will look at include:

• the age and physical and mental condition of the child;
• the age and physical and mental condition of each parent;
• the relationship existing between each parent and each child, and the ability of each parent to meet the emotional and physical needs of the child;
• the needs of the child, including other important relationships in the child’s life such as siblings, friends and other family relatives;
• the role that each parent has played in the child’s life, and the role each parent will play in the future;
• the likelihood that a parent will actively support the child’s relationship with the other parent, which includes looking at whether a parent has denied the other parent access to the child in the past, without good reason for doing so;
  • Note: This factor might not be considered if there is a history of family abuse, sexual abuse, child abuse, or an act of violence, force, or threat that has taken place within the past ten years;
• the willingness and ability of each parent to maintain a close and continuing relationship with the child;
• the ability of each parent to cooperate with the other parent in resolving disputes regarding matters that affect the child;.
• the preference of the child, if the child is old enough to understand and express such a preference;
  • Note: The court will consider any likelihood of improper influence by one or both parents on the child’s decision; and
• any other factor the court feels is necessary and proper in order to make a decision about custody.²

¹ Va. Code § 20-124.2(B)
² See Brown v. Burch, 519 S.E.2d 403, 408 (Va. App. 1999); Va. Code § 20-124.3

The judge will take into consideration the role that each parent has played in the child’s life, and the willingness of each parent to maintain a close and continuing relationship with the child.¹ If you have moved away from your child for a significant period of time, it may affect how the judge views these two factors.

However, it is important to remember that a judge will take into account a history of family abuse and sexual abuse.² Therefore, if you have moved away to escape abuse, you can explain to the judge why it was necessary for you to leave the home where your child currently lives. You may strongly consider getting a lawyer in this situation. Go to VA Finding a Lawyer for more information.

¹ Va. Code § 20-124.3(5) & (7)
² Va. Code § 20-124.3(9)

You do not need a lawyer to file for custody.  However, it is highly recommended that you get a lawyer if you can, especially if the other parent has one.  Custody cases can be complicated, and it is helpful to have someone guide you through the process.

If you cannot afford a lawyer, you may be able to find free or low-cost legal help in your area on the VA Finding a Lawyer page.

Even if you plan on representing yourself, you may want to consider having a lawyer review your papers before you file them.  Avoiding mistakes as much as possible will help to save time and money, and can improve your chances of success.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

Virginia law requires that the judge communicate the reasons for his/her decision, either in person or in writing. If the judge did not do this at the hearing, you may want to contact his/her court assistant to ask for an explanation in writing.¹

However, the judge does not have to explain every aspect of his/her decision-making process in detail, only the main reasons for the decision.²

¹ Va. Code § 20-124.3
² See Kane v. Szymczak, 585 S.E.2d 349, 353 (Va. App. 2003)

To get a custody order from a court, you will need to start by filing a petition in the Court Service Unit of a juvenile and domestic relations district court in the county where your child is living.¹  For a list of courthouses in Virginia, please see our VA Courthouse Locations page.

You will be charged a fee of $25 unless you are a low-income person and apply to have that fee waived.²

On the petition, you will be asked to provide your address.  If you do not want the other parent to know your address because you fear physical harm, be sure to tell this to the clerk and ask how your address can be kept confidential.

¹ See Virginia’s Judicial System website, Frequently Asked Questions
² Va. Code §§ 16.1-69.48:5; 17.1-606

Your case will be assigned to a particular judge after the petition is filed.  All of your court dates will generally be scheduled with your assigned judge.  You may appear in front of the judge on the date you file if you are asking for immediate temporary custody.  Otherwise, you may be given a date to return to court to appear in front of the judge.  The abuser will also be able to appear in court on that date as well.

Once you are both in front of the judge, you may be asked to participate in mediation (also called alternative dispute resolution).  If you are afraid of the other parent, or there is a history of family abuse, you can ask the judge to skip the mediation step.¹  See What is mediation and who pays for it? for a detailed explanation of mediation.  If you do reach an agreement through mediation, the judge will review it and then it will become a court order, unless the court finds that the agreement will not be in the best interests of the child.

If you do not reach an agreement during mediation, or you do not go through mediation, you will have a hearing in front of a judge where both parents will be able to present evidence and witnesses to strengthen their case. There may be multiple hearings before the judge issues a judgment or final custody order.  We strongly suggest you get a lawyer to represent you in the hearing to make sure your interests are protected.  Go to VA Finding a Lawyer page to find free and paid lawyers.

¹ Va. Code § 20-124.4

You can file to have your current custody order changed (modified) if there has been a substantial (material) change in circumstances since your most recent order was issued.¹ Generally, you would file a petition for modification in the juvenile and domestic relations district court that issued your original custody order. You would have to arrange for the abuser to be served with the petition so that s/he has the chance to appear in court. When making a decision about whether or not to change the order, the judge will decide whether there has, in fact, been a change in circumstances and whether or not changing the order will be in the best interests of the child.²

A “material change in circumstances” may include but is not limited to:

• one parent intentionally keeping the other parent from visiting with the child without good reason;¹
• changes in the child’s life, such as special educational needs or health needs;
• negative changes in the life of the parent who has custody, which will impact the welfare of the child; or
• positive changes in the life of the parent without custody, such as remarriage, creation of a stable home environment, and increased ability to provide emotional and financial support for the child.²

Note: If either parent is a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, Space Force, National Guard, or the reserves, and the reason for the modification request is his/her deployment, then it can be requested that the petition be reviewed more quickly by the judge.¹

¹ Va. Code § 20-108
² See Keel v. Keel, 303 S.E.2d 917 (Va. 1983)

Custody orders in Virginia are supposed to include a condition that if either parent wants to “relocate,” s/he has to give the other parent and the court 30 days advance written notice of the intended move.  The notice has to include the intended change of address, unless the judge says you do not have to provide your address.¹  Note: The law does not indicate how far the move must be in order to be considered a “relocation.”  If you are not sure if this applies to your situation, please get advice from an attorney.  You may also want to ask an attorney for advice on the best way to keep a record of the notice you send to the other parent (for example, perhaps sending it return-receipt requested, etc.)  Upon receiving the notice, the other parent may object to your intended move, especially if it would interfere with his/her time with the children.  In that case, you may have to ask the court to change the order to allow you to move and to modify the visitation schedule so that the move will not violate the other parent’s visitation order. 

The court will decide whether or not to allow the child to relocate based on the best interests of the child.  For more information on how to change your custody order, please see If a custody order is already in place, can I get it changed?  Warning: If your custody order says you cannot take your child out of the state or if by moving out of state, you violate the visitation rights of the other parent, you could possibly be charged with contempt of court, parental kidnapping, or both.² 

Note: If you are in danger and need to leave the state to protect yourself or your child, you may be able to file for temporary emergency custody in the state that you flee to.  Getting a temporary order will mean that you have legal custody of your child for the time being, but the abuser could be notified that you applied for custody in that state, which might make it easier for him/her to locate you.  For more information about how to get this, see Can I get temporary emergency custody?  Please talk to a lawyer before leaving the state if at all possible.  Go to VA Finding a Lawyer for free and paid lawyers.

¹ Va. Code § 20-124.5
² Va. Code §§ 18.2-49.1; 18.2-47(D)