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Thursday, February 5, 2015

Child Custody and Visitation in Virginia: Part 3

     The court considers one things and one thing only when deciding on issues of custody and visitation; the Best Interests of the Child. This is a term of profession, and it does not mean what a lot of people think it means. The best interests of the child are not necessarily what the mother or the father want for the child. The court has established a multi-part test in order to define what is truly in the best interest of the child. A Guardian ad Litem is often appointed to help the court decide the factors involved. Due to the complex nature of this standard, it is always important to have your own attorney to argue that the Guardian ad Litem or the attorney for the other side is wrong. Here is some basic information about the best interest standard.

     The best interest of the child is defined by the Virginia Legislature. It can be found in the Virginia Code at § 20-124.3. There are a total of ten factors the court takes into consideration when making these decisions:

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, 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 such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

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

      An experienced attorney can argue that each of the factors may hold more weight in any given case. As you can see, the sheer number of factors would allow both sides to make good arguments for why a child should live with them. Number 10 is so vague that it would allow for the introduction of evidence on a number of different issues.

     Although child custody and visitation may seem simple at first, there is a lot of complexity involved in this area of law. It is always advisable to have your own attorney represent you on custody and visitation cases. 

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