by VA Family Law Firm

CustodyMay 12, 20200 comments

Will a Protective Order Impact Joint Legal Custody of Children in Virginia?

Virginia courts have the authority to determine both legal and physical custody of children.  Often clients ask, will a protective order impact joint legal custody of children in Virginia?

What are the Different Types of Custody in Virginia?

Va. Code Ann.§20-124.1 provides the following definitions:

“Joint custody” means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.

“Sole custody” means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.

The court has the authority to award joint legal, joint physical, sole custody, or some combination thereof, that is in keeping with the best interests of the child or children.   In order to determine the best interest of the child in a custody or visitation proceeding, the court has to consider the factors in Va. Code Ann. §20-124.3.  This statute was amended during the recent legislative session, to include additional language in subsection 9.

What are Factors that Determine Custody in Virginia?

The factors cited below include the amended language in subsection 9, which will be effective as of July 1 2020:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
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;
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;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
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;
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;
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;
9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

How is Custody Decided in Virginia?

The court has to consider each factor listed above, but the court uses its judgment as to how much weight to give any one factor.   If a party is dissatisfied with the ruling at the trial level, they have the opportunity to appeal the decision to a higher court.   The appellate court reviews the particular facts in each case and applies the law to those facts in order to determine if there was a reversible error made by the trial court.   The appellate court will issue an opinion and will designate that the opinion is either published or unpublished.   Attorneys rely on these written opinions when they advise clients in their own cases.   It is important that your attorney keep apprised of new appellate court opinions as they are issued, especially in the family law area.

Armstrong v. Armstrong and Protective Order Impact on Joint Custody

For example, the Virginia Court of Appeals recently issued a published opinion in Armstrong v. Armstrong,  71 Va. App. 97 (2019).    In this case the Father appealed a decision by the trial court that ordered that the parents had to share joint legal custody of their child.   The Father argued that there was protective order in place that prohibited contact between the parents, which made joint legal custody impossible.   The Court of Appeals reviewed the trial court’s findings, and determined that it did not abuse its discretion, upholding the trial court’s decision.  The record showed that both parents had a close relationship with their child, and that communication between the parties that conformed to the restrictions of the protective order was possible.   Those factors, among others, influence the trial court’s decision and the Court of Appeals decision to uphold the findings.

Will a Protective Order Impact Joint Legal Custody of Children in Virginia?

It is important to remember that no one factor determines the outcome of a custody and visitation case.   Each case is unique.   Our attorneys monitor the latest appellate court decisions in order to help our clients navigate these difficult issues.   Please contact our office to schedule a consultation with one of our attorneys to go over the factors in your custody or visitation case.