When a husband and wife get divorced, they must decide which party will get custody of children from the marriage. Parties can agree to a custody arrangement in the Separation Agreement; otherwise, a judge will determine custody. When a judge is determining custody, mothers are given preference in many states. However, in Virginia neither mothers nor fathers are favored, and judges use many other factors to determine custody.
Custody is defined as the physical and legal control and responsibility for a minor child. Physical custody means that the child will live in the residence of the custodial parent. Legal custody means that the custodial parent has the right and responsibility to care for the child, including making decisions regarding the child’s educational and medical needs. Virginia courts have jurisdiction over custody cases if the child lives in the state and at least one parent lives or works in the state; or if the child resided in Virginia within the last 6 months and was only removed from the state because a custodial parent moved out of the state.
Factors for Granting Custody
When a court is to determine which parent will be granted custody of the children, there is no presumption that either parent is more fit. Instead the court must examine several factors in determining which parent would be in the best interests of the child. Those factors include: the age of the child, the physical and mental condition of the child, the child’s needs, the relationship between the child and each parent, the parents’ roles in caring for the child, the willingness and ability of the parents, any history of alcohol or drug abuse by either parent and any history of domestic abuse.
Modifications to Custody
Custody agreements are very rarely modified. Courts believe that the least amount of disruption is always in the best interest of the child. If a parent wishes to modify the existing custody agreement, he has the burden of showing that there was a significant change in circumstances necessary to force a change. The same court that determined the original custody placement shall hear the request for modification.
If a child is visiting with one parent and that parent fails to return the child to the custodial parent on time, the custodial parent must notify the local police. If within 48 hours the parent still fails to return the child, she will be charged with one of two crimes depending on the severity of the circumstances. If the parent kept the child within the state, she can be charged with a misdemeanor and be subject to a $25 fine or 30 days in jail. If the parent left the state with the child, the crime is felony and is punishable by a fine of $250 to $1000 and up to 1 year in jail.
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