Custody refers to the legal responsibility of raising and taking care of a child until they reach the age of 18. Generally speaking, there are two types of custody. The first is legal custody, which refers to the having the right to make decisions concerning the education and healthcare of the child. The second is physical custody, which refers to where the child lives. Being awarded sole custody means the parent will gain both the physical and legal custody of their child.
In the state of Virginia, both married and divorced parents can file for sole custody. In the case of married parents, they may apply in the condition that they do not live under the same roof as their spouse; otherwise, the court may not interfere.
In both cases, the parent must file a Petition for Custody in the Juvenile & Domestic Relations District Court (J&DR). For married parents filing for divorce in the Circuits Courts, they are also permitted to have the issue of custody addressed in the Circuit Courts.
There are no longer any gender presumptions in the law in Virginia, this means that the parent filing for custody must consider if they are the primary physical or financial caregiver of the child in order to determine what chances they have of being awarded custody.
Moreover, the court may consider a number of factors in the process of determining whether or not a parent can be awarded custody. These include the mental and physical health of the parent; the age, physical and mental health of the child; the relationship between said parent and child; the relationship between the child and his siblings and or extended family; any traces or history of abuse in the child’s family and the willingness of each parent to take on the role of their child’s caregiver. Moreover, if the court views the child as reasonable enough to state their preference for which parent should take them into custody, the court may consider this preference as well. When petitioning for custody, the parent must emphasis these factors.
Hiring an attorney in the state of Virginia for a custody petition is not required, but it is recommended. After presenting the other spouse with all of the relevant paperwork, an initial hearing will be scheduled by the court. Prior to this hearing, all concerned parties in the case, for both the J&DR and the Circuit Courts, must attend a four hour long parenting education class. Parents who fail to comply will greatly diminish their chances of gaining custody.
If the initial hearing did not reach end results and the parents still cannot decide which party gets custody, a trial will be scheduled to take place in one to three months after the hearing. During the trial, in accordance with the laws of Virginia, the judge must consider all of the factors previously listed in order to decide what would be in the best interest of the child. The judge may decide to give sole custody to one parent and visitation rights to the other or give joint custody to both parents.