In Virginia, the court does not automatically favour one parent over another. The court will look at the best interest if the child when determining who will gain custody. Both parents will be assessed equally and an agreement will be based on the best interest of the child or children. Custody battles are emotional and difficult, especially you and your partner cannot come to an agreement.
There are two categories of custody. These include legal and physical custody. Legal custody refers to the caretaker being able to make long-term decisions regarding the child’s welfare, such as education, religion, and non-emergency medical care. Physical custody involves making decisions about the minor’s everyday life and spending time with the minor. The court can award sole custody or joint custody.
When you are in the process of talking about your divorce with your partner while u still live under the same roof, you may ask yourself if you can file for guardianship. In Virginia, you cannot file for guardianship if you live under the same roof. When you have met these requirements, you may wonder where to file for guardianship. In the case you are unmarried; you must file a Petition for Guardianship in the Juvenile and Domestic Relations District Court (J&DR) in the city or county which the minor resides in. If you are married and have not yet filed for divorce you must file in the Juvenile and Domestic Relations District Court as well. Divorce actions are filed in the circuit court. If your divorce has guardianship issues you have the right to have guardianship addresses in your divorce. However, you must raise the issue of guardianship when filing for a divorce.
When filing for guardianship in Virginia you may be challenged by a third party such as a relative trying to seek care of the minor or children. Fortunately, minor guardianship laws in Virginia are in favour of the caretakers over a third party.
This presumption can be overcome by a third party in a few situations, including;
- If a parent has abandoned or previously abandoned the child or children.
- If each parent is shown to be unfit as a parent.
- If the court finds good reasons to remove the child or children from both their parents, for example, if the father or mother unsafe for the children to be around.
You may face challenges when the court evaluates each parent and whether or not granting them custody is within the best interest of the minor. In Virginia, many factors will be assessed by the court before awarding custody.
The court will look at each parents:
- Age, physical or mental health.
- The current relationship between the child and each parent.
- The needs of the child including emotional needs.
- The role each parent has had so far in the upbringing of the child or children.
- Each parents ability to maintain the relationship between the child and the other parent.
- Benefits of keeping the child or children with the main caretaker.