How Does a Judge Decide Who Gets Custody?

When a judge decides custody or visitation, they must focus on one thing: the best interests of the child. This is a rule written in Virginia law, and it guides every decision a judge makes. 

Judges are not supposed to give preference to mothers over fathers, or any one type of family. They look at the full picture of each child's life and each parent's ability to care for them.

What the judge considers

The role each parent has played in the child's upbringing is especially important. Beyond that, the judge looks at:

• The age and mental condition of the child
• The age and mental condition of each parent
• The relationship between each parent and the child
• The needs of the child
• How close each parent lives to the child's school
• Whether each parent will help the child stay in contact with the other parent
• Whether each parent will work cooperatively and resolve disagreements
• Any history of family abuse, sexual abuse, child abuse, or acts of violence or threats

Before your hearing, look over Form DC-574. This form lists all the factors a judge considers when deciding custody. Going through it ahead of time can help you prepare what you want to say in court. Think about what evidence you can bring to show the judge. 

What can hurt your chances

Some things can work against you in a custody case:

• Substance use, including marijuana, prescription drugs, or alcohol. Even though marijuana is no longer a crime in Virginia, many judges frown on parents using substances while caring for a child. Marijuana can remain detectable in someone's system for many weeks. The judge may order a drug test if there are concerns about impaired parenting
• Criminal convictions, especially those involving violence
• A Child Protective Services investigation that found abuse or neglect
• Untreated mental health issues
• Leaving a young child without care, even briefly. This depends on the child’s age and maturity level

How you treat the other parent matters too. These things can hurt your case:

• Taking the child out of state, even temporarily, without the other parent's agreement
• Blocking the child from spending time or speaking with the other parent
• Not showing up or being late with taking your child to see the other parent
• Abuse of the other parent

How likely is joint custody? 

Most custody orders include some form of joint physical or legal custody.

Sole custody is much less common. A judge will usually only award it when there is clear evidence that the other parent has been abusive, is not a safe caregiver, or has blocked the child from spending time with the other parent.

Judges generally believe that children do better when they can have regular contact with both parents.

Does the child get a say? 

It depends on the child's age and maturity. Especially if the child is older, often 14 and up, the court will consider the child’s preference. If the judge believes a child is old enough and mature enough to have a meaningful opinion, and what the child wants seems reasonable, the court might grant some or all of what the child wants. 

If the court appointed a Guardian ad Litem (GAL) to represent the child's interests, that person will speak to the child, tell the court what the child wants, and whether the GAL believes it is best for the child.

If the GAL or judge thinks either parent has tried to influence the child, they probably will not see what the child has said as being in the child’s best interests.

How the court decides visitation

The law requires judges to make sure children have regular and frequent contact with both parents whenever it is appropriate. Even if the court gives one parent sole physical custody, the judge will usually also order visitation with the other parent. The court must still consider the child’s best interests.

When parents live far apart, the judge will still work to protect each parent's relationship with the child. This might mean longer visits during summers and holidays, regular video calls, or some combination. Both parents may be required to share transportation. Travel costs can be a factor, but they are not always a dealbreaker. A judge may still order travel even if it is expensive or inconvenient, if they believe it is important for the child.

If a parent is in jail or a treatment facility and cannot come to court, the court should appoint a GAL for that parent. The judge will decide whether visits can happen by phone, video, or in person. Check the facility's rules about children before taking your child to visit.

Can visitation be denied completely? 

In rare cases, yes. If the judge finds that a parent is a danger to the child, or if there is a court order prohibiting contact, the judge can deny visitation temporarily or permanently. 

The judge may also order supervised visitation, meaning a responsible adult or agency must be present during visits. There may be a cost for this. 

Where can I get free or low-cost legal help? 

• Find your local legal aid office: virginialawhelp.org/get-legal-help or call 866-534-5243.
• Ask a lawyer a question online for free: virginia.freelegalanswers.org.
• Get a low-cost lawyer consultation for $35: vsb.org/Site/legal-help.

Things to remember

• The judge's main question is always: what is best for this child?
• Judges do not favor mothers over fathers. Both parents start on equal footing, unless there is a history of domestic violence or abuse.
• The amount of time a parent has spent with a child in the past will be a factor in deciding who the child will spend more time with going forward. Judges don’t want to make sudden changes in a child’s life if those changes are not necessary.
• Most orders include joint custody of some kind. Sole custody requires strong evidence.
• Substance abuse, your past history, and how you treat the other parent all matter. Judges will watch for it.
• If it appears one or both parents tried to influence the child’s preference, that preference probably won’t be granted.
• A parent’s behavior in court, toward the other parent, toward the GAL, and toward the child, will all be considered in the final decision of the court.
• A child who is 14 or older gets more of a say, but the judge is not required to follow their preference.
• Custody and visitation may be changed in the future, if there is a “material change” in the circumstances. Filing to amend the order because you are unhappy with it is not a reason the court will consider.