Virginia Child Custody & Visitation Cases: Understanding Your Rights

The Best Interest of the Child(ren) is the Primary Consideration

In Child Custody and Visitation Cases in Virginia, the Courts primary consideration is the best interest of the child. In deciding these types of cases the courts consider the following factors from Virginia Code Section 20-124.3:

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.

Can a third party, someone other than the parent of a child be given visitation rights by the Court?  Well the answer to that question, is it depends.  In a visitation battle between a parent and a non-parent the court will consider various factors as in any case. However, there are certain factors that must be present to overcome the objection of a parent to the third party visitation.

The Code of Virginia Section 20-124.2.B.  states that “The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.â€

A person with a legitimate interest is defined as a “Person with a legitimate interest’. It shall be broadly construed and includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child….†Code of Virginia Section 20-124.1.

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