I am going to spend the next few posts discussing the Va. Code section 20-124.3. This is the code section that judges use to determine custody and visitation of children when the parents are no longer together. (Or even in extreme cases where an interested party may be granted custody or visitation if the parents are unable to provide appropriate care.)
If you are going through a divorce or are separated and you have children together, it is very likely that you have heard the term “best interests of the child” but were uncertain what that really meant. When the parents cannot come to agreement, the court looks to many factors to determine who should have primary physical custody, how much visitation should be awarded, and even whether or not legal custody will be joint or sole.
Before beginning the process, some basic definitions need to be provided as to legal and physical custody. Legal custody pertains to decisions regarding major life events, such change in schooling, religion, medical treatment, etc. If the parents have joint legal custody, they must confer with one another regarding those changes. In nearly all cases I have seen over the past several years, parents have joint legal custody. Physical custody refers to with whom the child resides. It is most common for one parent to have sole physical custody with visitation awarded to the other, though physical may also be joint or shared. Sole or shared physical custody may also be expressed as “primary” physical custody with one parent.
Virginia Code section 20-142.3(1) states that in “determining best interests of a child for purposes of determining custody or visitation arrangements” . . . “the court shall consider the following:”
“1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;”
When reviewing this section of the code, a judge may consider any number of facts. For instance, if the child is very young – an infant or a toddler – and one parent has been the primary caretaker, a judge may want some showing by the other parent that they are equipped to respond to the needs of an infant or a toddler. Just because someone has become a mother or father does not mean that they have the skills necessary to care for a young child on their own.
A court will look at each child to determine how those physical, mental and developmental needs are being met by each parent while analyzing this factor.
There are many more factors in determining the best interests of the child. Sometimes a parent will focus on one issue that they feel outweighs everything else; however, the court will review all of the factors before balancing it out to make a final determination. I will be addressing these other factors in coming posts.