Anyone can read the “best interests of the child” factors and walk away with the impression that the judge will rule in his or her favor.
The truth is, these factors are an art, not a science. You don't “win” the most factors and automatically “win” your case.
Presentation and past behavior are the most important aspects of a custody case, and you can win or lose based on how the judge understands your evidence.
Let's look at each factor in turn:
1. The age and physical and mental condition of the child, giving due consideration to the child's developmental needs. VA Code 20-124.3(1)
If your child is physically and mentally healthy, this factor should be a brief part of your case.
If not, the judge needs a clear understanding of how you as the parent tend to the special issues with the child. For example, how have you participated in the child's recovery plan, should one exist? If your child has special educational needs, do you go to Individualized Education Program (IEP) meetings? Have you taken the child to specialists out of state?
2. The age and physical and mental condition of each parent. VA Code 20-124.3(2)
Again, if you and your ex are both physically and mentally healthy, this should be a brief part of your case. Avoid speculating about what might be wrong mentally with your spouse - this can backfire. Tread carefully.
If your spouse has an actual diagnosis from a professional, you may want to bring it to the court's attention. However, do not waste the court's time pointing out that your ex had depression in college if you are both 40 years old. If it's not effecting the child, it probably does not merit consideration by the judge.
Remember this isn't about bashing your ex. This factor is about tactfully showing that your ex's previously diagnosed condition either poses a risk to your child or in some way limits his or her ability to best care for your child.
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. VA Code 20-124.3(3)
The relationship between parent and child is the focus of any custody case. Therefore, if you see your child twice a month for the past three years and decide that you now want custody because child support has gotten too expensive, the judge is simply going to deny your request.
The court wants to see that you have a close, connected relationship. Do you call your child every day? Are you showing up to parent/teacher conferences? What is your child's shoe size? If you can't demonstrate that you're involved, you're going to have a hard time convincing a judge to change the status quo. If you are lacking in this area it is a good idea to step it up for a period of time prior to filing or appearing in court.
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. VA Code 20-124.3(4)
This factor addresses your child's extended circle. Occasionally, messy breakups between partners can mean that one child is alienated from the other parent's family. How can you demonstrate to the court that you enable your child's relationships? This can be especially challenging in situations where the extended family is bad mouthing you, or otherwise going against what you believe is best for your child. This is a difficult portion to address without a lawyer.
The court needs to understand your motivations without believing that you're rancorous and acting on impulse. For those relationships you consider problematic, how have you done your best to maintain the bond while monitoring for trouble? Do you let FaceTime calls through? Do you allow visits in public areas? Do you foster your child's relationships with BOTH your ex's family as well as your own when given the opportunity?
This is an area where you can create situations to shine. Go out of your way to demonstrate your willingness to rise above your own feelings and put your child first. This is a factor that most people find extremely difficult and often fail at. Accordingly, this is an excellent opportunity to impress the judge. Don't waste it.
5. The role that each parent has played and will play in the future, in the upbringing and care of the child. VA Code 20-124.3(5)
This factor is sometimes ignored because of its vagueness. Some non-lawyers think to themselves, “The role I played is mother! I'm still the mother. The court knows that.” This is a mistake. Children are not static. They grow, they change, and your care for them shifts and expands with the passing of time. The court needs to understand that you're able to navigate those waters.
For fathers, how do you show the court that the mother was more involved while the child was an infant, but now you're ready to take on a more active role?
Conversely, for mothers, how do you show that you are still just as involved while working as you were when you were staying home?
These are tricky waters to navigate. Each judge is going to have a different view, and it is essential to get an experienced lawyer who is familiar with your jurisdiction and knows where the court is likely to come down.
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. VA Code 20-124.3(6)
The key is active, active, active. Are you letting calls through? Are you showing up on time for drop offs and pickups? Are you being flexible with the other parent when possible? Do you speak ill of your ex to your child or where your child can hear? (Often referred to as Parental Alienation). Do you drop hints that your ex is being ridiculous to family and friends?
The court can come down HARD on these - especially negative comments about your ex. If you make derogatory statements about your ex while your children can hear you can rest assured that they will be repeated. This behavior is taken EXTREMELY SERIOUSLY by the court and, if severe enough, can result in you losing custody entirely. Save the comments for a therapist.
But what about situations in which the other party is truly inflexible and is cutting off contact? Being able to demonstrate that the other parent has behaved badly is critical to establishing your case. Getting your evidence admitted is crucial. If there are emails, texts, and photographs that you want the judge to see, plan to go with a lawyer. There are very technical rules that govern the admissibility of evidence, and the court may refuse to even look at your evidence if it is not presented properly.
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. VA Code 20-124.3(7)
Most parents will not have an issue with this factor. Have you demonstrated that you have a close relationship with your child since you separated from the other party? If so, this will not be difficult to show.
However, there are cases in which the ex inhibits contact with the child so that he/she can claim to the court that you have not demonstrated a close and continuing relationship. This can be difficult to refute if you're not prepared. Be ready to address with specificity (dates, times, attempts) how you have tried to keep that connection with your child/ren strong.
The key here is to keep trying no matter how many times you are rejected and to document each rejection. Ultimately these efforts will demonstrate your desire to have a close relationship even if your ex has been preventing it for a period of time. Additionally your ex's actions in denying you access to your child/ren will reflect poorly on them and in that way also weigh in your favor.
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. VA Code 20-124.3(8)
This will be a factor in your case if the child is older and can demonstrate a reliable preference. However, your child's preference does not have to be fatal to your custody case.
Is the other parent lackadaisical with discipline? Do you have the attendance records demonstrating that the other parent is not making the child attend school, or that they always show up late? Judges are smart. If you can show that the other parent is a rubber stamp as far as the child is concerned, you can overcome the clear preference of the child to be with the other parent.
9. Any history of family abuse as that term is defined in VA Code Section 16.1-228, or sexual abuse. If the court finds such a history, the court may disregard the factor 6 above (Whether the parent fostered the other parent's relationship). VA Code 20-124.3(9)
Note that there does not need to be a conviction in order for the court to consider a history of family abuse.
Many victims of abuse believe that the court will cut off all contact between the abuser and the child. This is not always the case, and the parent should be prepared to demonstrate why it is necessary.
However, if the court does find that you were the victim of abuse, the court is not going to care that you didn't co-parent with your abuser. Factor 6 above, whether you fostered your child's relationship with your ex, will not be taken into consideration once abuse is shown to have occurred.
10. Such other factors as the court deems necessary and proper to the determination. VA Code 20-124.3(9)
This is the catch-all provision. The court may consider any information it feels relevant that is not addressed by the other factors. Be wary. This allows room for any evidence or testimony to be presented if your ex and their lawyer can convince the judge it could be relevant to what is in the best interest of your child. An attorney can help you prepare for what curveballs can appear in your case.
The Two Types of Custody
1. Physical Custody
Physical custody refers to the who is responsible for the daily care of the child as well as where the child will live.
If you have sole physical custody the child/ren's primary residence is with you while they may visit your ex every other weekend, holiday, and for a few weeks over the summer.
Joint physical custody normally means your child will spend roughly half the year living with you, and half with your ex – this is often done on a 7 days on, 7 days off, schedule.
2. Legal Custody
Legal custody refers to the right to make important decisions regarding your child/ren's health, education, and welfare. Legal custody can also be sole or joint.
If you have sole legal custody then you get to make these decisions on your own.
Joint legal custody means that you must make these decisions together. In high-conflict divorces where joint custody is granted the court will often choose one parent to give final legal decision making authority to.
Final legal decision making authority means that in situations where you and your ex do not agree, the one with final decision making authority gets to decide. If this is granted the court may impose conditions you must meet before you can exercise such final decision making authority. For example, the court may require you to submit to a round of mediation and attempt to come to an agreement with your ex before exercising your authority. Any conditions will be laid out by the court in your final custody order.
Every custody case is different so it is important to find a lawyer who will take the time to learn the unique aspects of your situation, and come up with a strategy individually tailored to each client. This will also be one of the most stressful period of your life so it is equally important for you to choose a lawyer who you feel comfortable with. Contact our office today to schedule for a free confidential consultation with a experienced Virginia family law lawyer, and begin the process of reclaiming control of your life and family.