Donna Dougherty Law P.C.

Custody Determination and Children's Best Interests

When parents are going through a divorce and cannot come to a workable agreement about childcare, Virginia courts are often required to step in. There are a number of considerations involved in determining which parent should become the primary caretaker and how visitations should be scheduled.

Virginia legal code dictates that matters of custody and visitation must be determined in accordance with the best interests of the child or children involved. To determine what constitutes those best interests, the court considers several factors, including the following:

  • The child's needs in accordance with his or her mental and physical condition and age
  • The current bond between each parent and the child, and how committed each parent is to maintaining that bond and remaining involved in the child's life
  • Parents' respective physical and mental health and age
  • The child's preference if he or she is judged sufficiently mature and competent to express such partiality
  • Any history of parental sexual or family abuse

Despite this extensive analysis of family history, the Child Custody Project notes that the decision about who receives custody also involves a prediction about what will be best for the child in the future as he or she grows. Such predictions are nearly impossible to make with absolute accuracy, but the "best interests" policy remains the strongest standard for protecting children during a divorce.

In the past four decades, courts have moved away from the view of custody by a single psychologically and economically stable parent as the best approach. Today, courts are more likely to give custody to the parent who is willing to help the child maintain a relationship with the other spouse.

In the same vein, joint custody is also a popular solution that allows parents to have equal decision-making power, even if the child resides primarily with one parent. This strategy may be beneficial for children in many circumstances but is workable only insofar as parents are willing to shelve ongoing conflicts with each other in the interests of providing a stable environment for their children. 

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