Best Interest of the Child
In making custody and visitation determinations in Virginia, the judge must look at the “best interest of the child.” Those are 10 factors detailed in the code of Virginia that the court must consider and weigh during a divorce proceeding between two people involving a child or children.
10 Factors a Judge Must Consider
The first factor is the age and physical and mental condition of the child given due consideration to the child’s changing developmental needs. So, when the court is looking at that factor, it is looking at what the child’s needs are right now and what they can be in the future. If you have a child who has special needs, this factor is going to be very important in the case.
The next factor the court looks at is the mental health of both parents. It is here when sometimes a psychological evaluation is done if there is a concern or issue with one parent’s mental health.
The third factor the court looks at is the relationship existing between the child and each one of the parents and his or her positive involvement.
Children and Other Relationships
The next factor the court considers is the needs of the child given due consideration to the relationship with siblings, extended family, their neighborhood friends, and their peers, so, in this factor, the court could look at if a child is very close to, say, the maternal grandparents, what effect would the relationship with the maternal grandparents have if father was awarded custody in that situation.
The fifth factor the court looks at is the role that each parent has played in the caring of the child now and in the future. Under this factor, the court is going to look at who played the role of taking the child to his or her doctor appointments, school projects, extracurricular activities and just the parent’s involvement in the day-to-day caring of the child.
Are the Parents Working Together?
The sixth factor that the court will look is each parent’s propensity to support the relationship between the other parent and the child. Here, you are looking at when the child is with the mother, is she actively supporting father’s contact, communication, and visitation with the child and vice versa
The seventh factor the court is going to look at is each parent’s relative willingness and demonstrated ability to maintain a relationship with the child and his or her ability to work together. What a court wants to see is two parents co-parenting and reaching decisions together for the benefit of the child. In a divorce situation that’s going to be hard because you had someone who was your teammate and now they’re not and, a lot of times, people tend to dig in their heels. But, what the court is going to want to see is that you can actively cooperate with your ex-spouse or your soon-to-be ex-spouse in making beneficial decisions for the best interest of the child or children.
The eighth factor the court will consider is the regional preference of the child. Remember, though, that the court is also going to consider the age, maturity, and intellect of the child. For example, in this situation when you have a 4-year-old, obviously he or she doesn’t really understand what is going on and his or her preference isn’t going to carry as much weight.
What Does the Child Want?
In Virginia, there is no hard, fast rule that states an age at which time the child’s preference is what the court will do because the court is always going to consider the age maturity and intellect of the child. For example, if you have a 16-year-old who says he wants to live with his dad, obviously the 16-year-old may be old enough to make that decision, but, if the teen wants to live with his dad because dad lets his girlfriend stay the night and they can smoke marijuana while in his dad’s house, obviously, that preference isn’t going to carry a lot of weight with the court because that’s when the court will look at the maturity and the intellect with the child and why he or she is making this preference.
The 9th factor that the court will look at is if there is a history of family abuse.
The Last Factor: A Catchall
The 10th factor that the court will look at is such other factors that the court deems necessary and proper. This is the catchall so if there are things that don’t fall under factor 1 through 9 this is where that evidence, that information could be presented to the judge. The court will look at all 10 factors, weigh the factors and then make a determination as to the custody and visitation of the child or children.