Blog

Best Interest of the Minor Child (By Mary Elizabeth Davis)

Parents will need to develop a plan for how to share a child after a relationship ends or after a divorce.  Most of the time, parents are able to decide how best to share time between the parents, and court intervention is not necessary.  (An order may be entered by the court in these cases, but it is a consent order with terms decided by the parents.)

Parents need to understand the difference between physical custody (the schedule of how the child shares time with each parent) and legal custody (decision-making authority).  Joint legal custody is the norm in Virginia.  Parents must make important medical, religious and educational decisions together.  Some cases where joint custody might not be appropriate would be where there has been physical or sexual abuse, where the parent has an ongoing substance abuse problem, or where a parent has very debilitating mental health problems.

With regard to physical custody, most commonly, courts will decide that one parent will be the primary custodial parent and the other parent will be the visiting parent.  Judges attempt to find a schedule to ensure that the child will get to spend significant time with each parent and that the child's relationship with each parent will be encouraged.  Unfortunately, judges may not know all of a family's particular preferences, for holidays and other traditions, and orders are not as specifically tailored as when the parties themselves make these important decisions.

Judges look at a host of factors in determining the proper placement for child custody.  The formal factors are:

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. 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.


Essentially, judges are looking to find the history of who has taken care of the child and how well each has cared for the child, how the child has bonded with each parent, whether other siblings are involved, which parent will be better able to care for the child, which parent has the better plan to care for the child, and which parent will be best able to support the child's relationship with the other parent.

Anything which might make a neighbor disapprove of your parenting will have an impact on the judge!  Think of how you dress, speak, and carry yourself while in the courthouse, and while in the world.  Think of how you treat your child and what impact your parenting will have on the judge.  If there are things in your past which are negative, deal with them before court.  If you have a substance abuse problem, seek treatment.  If you have a poor job history, seek job stability.  If you have moved seventeen times in the last six months, seek some permanency prior to filing for custody.  Be the best parent you can be, not only to look good in court, but to help your child seek her brightest future.