The court takes the position that the parents of minor children are their natural guardians. In determining custody and visitation of a minor child, the court gives primary consideration to the best interests of the child while maintaining a presumption that it is in the best interest of the children to award custody to parents. We offer a Free Initial 30 Minute Consultation For New Clients. Give us a call or use the contact form below.
Factors to consider for Custody or Visitation:
In determining the best interests of the child for purposes of determining custody or visitation arrangements, the court considers the following (§ 20-124.3):
- The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
- The age and physical and mental condition of each parent;
- 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;
- 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;
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- 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;
- 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;
- 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;
- 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
- Such other factors as the court deems necessary and proper to the determination.
Adultery and homosexuality do not constitute parent unfitness per se but can render a parent an unfit custodian if the circumstances result in an adverse impact upon the children. Specifically, the courts have held that evidence of adultery by a parent without a showing of this conduct in the presence of the children is insufficient basis to find that a parent is an unfit custodian of the child. Consequently, the issue pertains to the child's exposure to the immoral behavior and the impact on the child and not the mere existence of it.
While natural parents enjoy a presumption in favor of custody, third parties can obtain custody of the children upon showing a legitimate interest in the child and that such custody would be in the best interest of the child. In addition, grandparents, stepparents, or other family members can obtain visitation privileges from the court (§ 20-124.2(B)). The wishes of a child who has reached an age of discretion will be considered. Before grandparent visitation can be ordered over the united objection of both the child's parents, the court must find that harm or detriment to the child's health or welfare would result without such visitation. The best interests of the child standard will be applied by the court if only one parent opposes grandparent visitation.