What Are the Factors to Determine the Best Interests of the Child?
Virginia decides custody and visitation cases by analyzing ten specific factors that are supposed to determine what is in the best interests of the child.
The first factor is the age and the current physical and mental condition of the child, though the court also gives due consideration to the child’s changing developmental needs. This factor is solely about the child. The court wants to get an overall picture of the child and their needs and whether there is anything specific to this child that needs to be considered. This factor becomes particularly important if there are any special needs that require extra care, whether the care is from parents or professionals. This factor is particularly important regarding babies and toddlers because their developmental needs change very quickly, and a parenting plan designed around a newborn generally isn’t going to work as well once the child begins attending school. Overall, these are the important questions to address: first, how is the child doing mentally and physically? second, what care does this child need? and finally, what sort of care is the child going to need in the near future?
The second factor is the age and the physical and mental condition of each parent. The court wants to get an overall idea of how each parent is doing physically and mentally to determine if there is anything that prevents them from being an appropriate parent. Generally, age and physical condition have a minimal effect on the court’s opinion of someone’s ability to parent unless either one of those presents a barrier for that person being able to effectively and safely parent. Great parents come in all shapes and sizes and ages, so most parents don’t have to worry about a physical condition getting in the way of their custody or visitation.
A parent’s mental condition, however, is a very important aspect of the second factor. It can be tricky to bring in evidence of the other party’s mental health because the court won’t allow you to testify about an opinion (unless you’re an expert witness). That means that even if you know for certain that the child’s father is suffering from some mental health condition that renders him unable to be an effective parent, you can’t simply say, “Your Honor, my son’s dad is a narcissist and only cares about himself.” You can only present evidence of events you personally witnessed and experienced and cannot offer diagnosis or an opinion.
The third factor is the relationship that exists between each parent and each child, giving due consideration to the parent’s positive involvement with the child’s life and their ability to accurately assess and meet the emotional, intellectual, and physical needs of the child. This factor is basically an analysis of how the first two factors work together. Though it’s not unusual for a child to be more attached to one parent over the other, it’s very important to present evidence to the court that shows a positive and healthy relationship between parent and child. Being the less-favored parent doesn’t necessarily mean you’re going to lose your case, but you do want to show that you have a good relationship that can only grow moving forward.
The fourth factor is 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. With this factor, the court starts to look at other important people in the child’s life, which becomes particularly important if the child has siblings at one house but not at the other, or if one parent is trying to relocate and wants to take the child with them. It’s crucial to show the court that the child will be able to maintain and maximize the relationships they have built with important people around them with that parent’s proposed plan.
It’s not unusual to have military parents who are only in Virginia because of a military assignment. These parents don’t intend to stay here because they don’t have ties to the area aside from the military. If one of those parents is proposing relocating with the child, then extended family members living wherever that parent is trying to relocate become important in persuading the court that the best interests of the child could be met elsewhere. It’s crucial to show the court who the important people to the children are and to show evidence of these relationships if the child has them. These relationships don’t necessarily have to be present relationships; they can be potential relationships that the child doesn’t have the opportunity to have unless the child is able to relocate or is able to live under the parenting plan that is being proposed by that parent.
The fifth factor is the role that each parent has played and will play in the future in the upbringing and care of the child. This factor looks backward in time to see how each parent has fit into the child’s life so far. Generally, the courts value stability for the children, which means they are hesitant to switch custody from one parent to another unless there is strong evidence to support that the switch would be in the child’s best interests. For this reason, if one parent has been the primary caregiver all along, it’s most likely that parent will have an advantage over the other parent. This factor strongly benefits the stay-at-home parent over the working parent who was not around much due to regular travelling for work, deployments, or the like.
It can be difficult for the working parent to overcome this factor when compared to the stay-at-home parent. Nevertheless, it’s important to show the court that you intend to be as involved as possible moving forward, even if that wasn’t the case in the past, as well as the reason why you weren’t as involved in the past (i.e., work). Of particular importance for this factor is your involvement in things related to the child, such as doctor’s appointments, school meetings, extra-curricular activities, etc. If you weren’t as involved in the past, now is the time to become a super parent and get involved. You need to be going to the doctor’s appointments, setting up parent-teacher conferences, and showing up to the baseball games.
The sixth factor is 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 access to or visitation with the child. This factor often makes or breaks a case. I’ve had cases where both parents were amazing parents but the court switched custody from the mom to the dad because the mom wasn’t co-parenting effectively with the dad. Unfortunately, it’s not unusual to have one parent calling the shots while the other parent tries to get whatever parenting time they can with the restrictions imposed by the first parent. Virginia courts believe that children need and benefit from having both of their parents. With that said, it’s important to show to the court that you can effectively co-parent, meaning you are able to work with the other parent to meet the best interests of the child and you’re not unreasonably denying access to or visitation with the child or putting up barriers for the other parent.
This can be very tricky because it’s not uncommon to have the other parent ask the parent with the child to drop everything and allow them visitation. In other words, they will give the parent with the child one hour’s or one day’s notice and say, “I would like to have this weekend with little Angela”; then, the parent with the child says, “Well, I already had plans for little Angela this weekend, so that’s not going to work.” The next thing you know, that parent is presenting these text messages in court and complaining about not getting visitation, when the request wasn’t reasonable in the first place. The key here is whether the parent is being reasonable in working with the other parent.
The seventh factor is the relative willingness and demonstrative ability of each parent to maintain a close and continuing relationship with the child and the ability of each parent to cooperate and resolve disputes regarding matters affecting the child. This factor is related to the previous factor in that it focuses primarily on the parent’s ability to co-parent. Effective communication is key here. We need to see positive language used rather than abusive and harmful communication. Text messages and emails are read in court all the time, and any threats against the other parent will definitely be presented. Neither parent should be using the children against the other parent or presenting any impossible scenarios. Each parent should be reasonable and willing to compromise. As the great Ruth Bader Ginsburg would say, “You can disagree without being disagreeable.”
The eighth factor is the reasonable preference of the child, if the court deems the child to be of a reasonable, intelligent, understanding age with the experience to express that preference. This factor is generally relevant in older children. While there is no set age, the court typically considers children around age 12 to be able to articulate a preference in a mature and reasonable way. That doesn’t mean that the child gets to decide where they live, and that’s true for every age. As children get older and more mature, their preference does hold more weight, but the court will still balance all of the other factors to determine what is in their best interests.
In most cases, I don’t like to have children testify. The court assigns a guardian ad litem to make a recommendation to the court regarding the child’s best interests and their preferences. If necessary, I find that the best way to ensure the child’s voice is heard in court is to have the child go back to the judge’s chambers with the guardian ad litem and privately tell the judge whatever it is that needs to be said.
The ninth factor is any history of family abuse, which is defined as any act involving violence, force, and threat, including but not limited to any forceful detention that results in bodily injury or that places one in reasonable apprehension of bodily injury, and that is committed by a person against family or household members. While typically no factor is more important than any other, this one can definitely tip the scales heavily in favor of one party over another. In fact, some of the other factors are completely ignored in abuse cases.
Abuse cases are extremely complicated, and unfortunately, many rules of the court make these cases even harder. For example, if there is a current court order, you are not allowed to present any evidence of events that occurred prior to the current order. The logic of this makes sense: anything that occurred before was already considered in reaching the current order, and therefore, we don’t need to rehash it every single time we go to court. This makes cases involving domestic abuse or child abuse that occurred in the past especially challenging because it’s difficult to present admissible evidence. Navigating an abuse case is not something that any parent should attempt to do alone as these cases can be difficult even for seasoned attorneys.
The tenth and final factor is such other matters as the court deems necessary and proper to the determination. This factor we call a catch-all since it takes into consideration anything else that might be relevant but that doesn’t necessarily fall under any other factor.
The idea behind the ten factors is that the court wants to have a full picture of the parent, the child, and the circumstances in their lives. The court analyzes and weighs all of the factors—not necessarily equally—to make a determination on what will constitute the best interests of the child.
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