Divorce in Virginia v. Divorce in Other States: Part II

In my first blog entry of this series, “Divorce in Virginia v. Divorce in Other States: Part I,” I introduced you to the American Bar Association’s article in its Family Law Quarterly, which provides a state-by-state comparison on the divorce and custody laws between states. I covered how Virginia compared to other states when courts calculate alimony or spousal support and child support.

In this blog, we’ll discuss how Virginia compares to other states when establishing parental custody.

Best Interests of the Child

If you and your ex-spouse or ex-girlfriend/boyfriend cannot agree upon visitation and custody, you will have to request a judicial determination. In other words, a Virginia Circuit Court or Juvenile and Domestic Relations District Court (JDR) judge will make custody and visitation determinations according to the best interests of the child or children.

The majority of states, with the exception of a few, including Maryland and Massachusetts, use statutory guidelines or factors to determine what type of visitation or custody arrangement would be in your minor child’s best interests. In Virginia, Section 20-124.2 and Section 20-124.3 of the Virginia Code set forth the statutory factors courts used to establish the best interests of the child determination.

Child’s Wishes

Frequently, there are cases when one parent states that his or her child prefers living with him/her than his/her mother/father. Do courts in Virginia consider the child’s wishes? Virginia law allows courts to take a child’s wishes into account, but generally, the older a child, the greater the chances that a judge will consider his or her preference.

In most other states, courts will consider a child’s preference or wishes when making a custody or visitation determination. However, in a few states, courts will only consider a child’s wishes at a certain age.

In Virginia, there is no statutory minimum age at which courts take a child’s best wishes or preferences into account. Thus, courts may take a child’s best wishes into account but only on a case-by-case basis.

Joint Custody Preference or Presumption

In some states, including Tennessee and Texas, courts prefer joint custody and visitation arrangements. Thus, in these states, unless one parent can demonstrate that a joint custody and visitation arrangement is not in the best interests of the child, a court is likely to award joint visitation and custody. In my opinion, this is a great rule.

In Virginia, there is no statutory presumption in favor of joint custody. As such, a parent has to ask for joint physical or legal custody. In my experience, it’s common for parents to share joint legal custody, but primary physical custody is awarded to only one parent, while the other can exercise visitation.

In the next few blogs, I plan to cover the differences in the divorce residency requirements in other states and the differences in property division awards during divorce compared to Virginia.