How to Get Sole Custody in Virginia

Jordan A. Fanney

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How to Get Sole Custody in VA - Smiling Child


Table of Contents

Parents often ask me in consultations how to get sole custody, also referred to as full custody. The answer is simple but often difficult in practice. To get sole custody of your minor child in Virginia, you must show that sole custody is in your child’s best interests.1 Virginia courts rely on 10 factors, called the best interests factors, to determine the best interests of children when it comes to custody decisions.2 All factors must be considered; no one factor is determinative.3 The best interest factors are as follows:

  1. The age, physical, and mental condition of the child, taking into account the child’s changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship between each parent and child;
  4. The important relationships of the child, including siblings, peers, and extended family members;
  5. The role each parent has played and will play in the upbringing of the child;
  6. The ability of each parent to support the child’s relationship with the other parent, “including whether a parent has unreasonably denied the other parent access to or visitation with the child”;
  7. The ability of each parent to work with the other parent to resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the child is old enough, mature enough, and reasonably intelligent enough to express such a preference;
  9. Any history of family abuse, sexual abuse, child abuse, and acts of violence and threats that have occurred within 10 years of the filing date of the petition. If such acts have occurred, then factor 6 regarding a parent’s ability to support the child’s relationship with the other parent may be disregarded;
  10. Other factors related to the best interests of the child.

Before discussing how to get sole custody in Virginia, it is important to understand the different types of custody. There are two types of custody in Virginia: legal custody and physical custody. Both types of custody are determined based on the best interests of the child. Legal custody can be sole or joint. Likewise, physical custody can be sole or joint. When a Virginia court awards both sole physical custody and sole legal custody this is called full custody.

There is a difference between legal and physical custody. Legal custody refers to a parent’s authority to make decisions concerning the child’s upbringing. This includes decisions regarding the child’s education, health, religion, and general welfare.4 Physical custody pertains to where the child lives and spends his or her time. When it comes to legal and physical custody, Virginia courts can award either sole or joint custody.

Sole Custody v. Joint Custody

Sole legal custody means that only one parent has decision making authority regarding the child, whereas joint legal custody means that both parents have decision making authority.5 Virginia courts can also give one parent sole legal custody for one type of decision, such as education, and award joint or sole legal custody over other decisions.6

Sole physical custody means the child primarily resides with one parent. Although the child custody statute does not specifically define “primary,” it generally is interpreted to mean that a parent has physical custody of a child every day except for 90 days or less in a year.7 A parent that does not have sole physical custody may still have visitation (also called parenting time) with the child. Typically, the non-custodial parent has parenting time every other weekend, but other schedules are possible.

Joint physical custody means that the child spends significant time at both parents’ homes, typically more than 90 days at each household.8 Examples of 50/50 shared parenting schedules include week on/ week off custody where parents alternate having the child each week and a 5-2-2-5 schedule, where the child spends Monday and Tuesday with one parent, Wednesday and Thursday with the other parent, and alternates spending Friday through Sunday with each parent. Shared schedules that involve less than a 50/50 split are also common.

A parent that has full custody has both sole legal custody and sole physical custody. “Sole custody” means the same thing as “full custody” when referring to both sole legal custody and sole physical custody. Virginia courts do not typically award full custody to a parent.

Even if a parent has full custody this does not necessarily mean that the other parent has no right to see the child or acquire important information about the child. Courts almost always award non-custodial parents some form of visitation if they request it. If there are legitimate safety concerns, courts can require the visitation to be supervised. Supervised visitation is usually limited to circumstances where the child would be put at risk of abuse or neglect if left alone with the non-custodial parent. For instance, if the non-custodial parent is struggling with a heroin addiction, he or she should not expect to have visitation unless the visitation is strictly supervised.

Parents still have the right to obtain certain information about their child even if the other parent has sole legal custody. Under Virginia Code § 20-124.6, parents generally are afforded the right to obtain the academic and medical records of a child regardless of legal custody status.9

Where Do You File to Get Sole Custody?

a. City/county to file in (venue)

In Virginia, a case for full custody can be initiated in the following cities/counties in order of priority:10

  1. The preferred place to file is the court of the city or county that “is the home of the child at the time of the filing of the petition, or had been the home of the child within six months before the filing of the petition and the child is absent from the city or county because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as a parent continues to live in the city or county.”
  2. Next down the list in order of priority is the city or county that “has significant connection with the child and in which there is substantial evidence concerning the child’s present or future care, protection, training and personal relationships.”
  3. The third choice is “where the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.”
  4. If the first three choices above do not apply, then you can file in any city or county where it would be in the best interest of the child for the court to assume jurisdiction.

b. Proper court to file in

Once you determine the proper city or county to go to, you need decide which court to file in. Your choice depends on whether you are unmarried or married.

Unmarried. If you were never married, your only option is to file for full custody in the Juvenile and Domestic Relations District Court (JDR Court). If you are divorced, the divorce decree controls where you file. If the decree transferred the issue of custody to the JDR Court for future modification and enforcement, you have to file in the JDR Court.11 Otherwise, you have to file for sole custody in the Circuit Court.

Married. If you are married, you also have the option to file for sole custody in the JDR Court; however, the other party can request that the case be transferred to the Circuit Court if a divorce or suit for separate maintenance (spousal support) has been filed and certain requirements are met.12 If you are going through a divorce, custody is typically decided as part of the divorce case in Circuit Court unless both parties agree to a referral to the JDR Court.13 It generally is not a good idea to have two separate sets of litigation going on at the same time for cost and efficiency reasons.

Can You Establish Full Custody Without a Court Order?

The parents of a child have a federal constitutional right to “establish a home and bring up children” and “to control the education of their own.”14 Both parents share this constitutional right. To gain superior custody rights, a parent must file a petition for those rights in an appropriate court and have a judge sign a court order establishing superior rights.

You can only legally establish full custody without a court order if there is no other parent that shares the constitutional right to the upbringing of the child. If the other parent is deceased, you have full custody by default. Likewise, if you had your child out of wedlock and there has not been an acknowledgement of paternity, you are assumed to have sole custody.

To obtain sole legal custody, a parent must show that sole legal custody is in the child’s best interests. As a practical matter, courts in the Hampton Roads area of Virginia do not typically award sole legal custody. There is no legal presumption in favor of joint legal custody, but Virginia law “encourage[s] parents to share in the responsibilities of rearing their children.”15 Situations in which Virginia courts may award sole legal custody include the following:

  1. A parent has abused the child.16
  2. A parent is incarcerated.
  3. One parent has improperly interfered with the decision making process to the detriment of the child.17
  4. One parent is guilty of parental alienation.18
  5. A parent has poor judgment and makes decisions that are not in the best interests of the child.19
  6. There has been a breakdown in the co-parenting relationship and sole legal custody is a means of eliminating conflict with regard to decision making.20 But note that judges often will still grant joint legal custody even if there is a breakdown in communication. Virginia courts may award joint legal custody even if a protective order is in place that makes direct communication impossible.21

If your case fits into one of the above categories or other strong facts exist that make sole custody in your child’s best interests, you may have a good case to get sole legal custody.

How to Get Sole Physical Custody

Before you delve into the specifics of how to win sole physical custody, determine why you are asking for it in the first place. Why do you think your child will be better off in your sole custody as opposed to a shared parenting arrangement? Is it because the other parent is uninterested and uninvolved, has a substance abuse problem, is estranged from your child, or some other reason? If you need help deciding whether sole custody is a reasonable objective, speak with a Virginia child custody attorney to go over the specific facts of your case. If you conclude that your child will be better off if you have sole physical custody, then use the following 12 tips to help build your case.

1. Show that you better appreciate your child’s mental and physical needs

To make your case for sole physical custody, you should be as involved as possible in all aspects of your child’s life, including their mental and physical health, their development, their education, their sports and extracurricular activities, and their social and spiritual well-being. You should know everything there is to know about your child. If you do not know the names of your child’s teachers and doctors or what medications they take, that is a problem.

If your child already lives primarily with you, you should establish that your child is doing well in school, has friends and is excelling socially, and is generally happy and well taken care of. To prove that you better appreciate your child’s mental and physical needs, you should consider preparing the following evidence:

  • Medical records: Medical records showing that you regularly take the child to doctor’s appointments and are taking care of any physical issues.
  • Therapy records: Therapy records showing that you are addressing any mental health concerns the child has.
  • School records: School records, including report cards and progress reports, showing that your child gets good grades, has good attendance, and does not have any behavioral issues. If any issues do exist, you should prepare proof that you are doing everything you can to address the issues. This could include tutoring, counseling, and participating in parent teacher conferences.
  • Witness testimony: Witness testimony discussing your involvement in school, sports and extracurricular activities, and church or other places of worship (as applicable).22

If you can establish that you already better understand and take care of your child’s mental and physical needs, you will have an easier time showing that you are better positioned to meet their needs as they grow older and develop. This factor is especially important if you have a special needs child.

2. Take care of your mental and physical health

You cannot be the best parent you can be if you are not mentally and physically well. It is essential that you prioritize your mental and physical health. If you are going through tough times, whether that includes depression, substance abuse issues or a cancer scare, get help. Courts are more likely to penalize parents that hide their issues compared to parents that come out front and show that they are taking action to address whatever it is they are going through. In extreme cases, this may mean taking a break from being the primary parent. It may be tough, but you will come out stronger and your child will thank you for it.

If you feel that the other parent has serious mental or physical health issues, do not rely on bare accusations. Judges are used to hearing parents accuse each other of being crazy narcissists and having all sorts of problems. Without proof, judges are often left with he said, she said arguments and may not give such accusations serious consideration. Further, you are not an expert and are not qualified to diagnose the other parent if he or she does not already have a medical diagnosis. If the other party’s mental health is a serious issue, you can ask the Court to order a psychological evaluation.23 If you suspect substance abuse, you also can request a drug test.24 Just know that if you want the other parent to go through tests and evaluations, the judge may make you pay for them and/or order you to do them as well.

3. Prove that you have a better relationship with your child

Parents that have more positive involvement in their children’s lives typically have a better relationship with their children. Thus, if you follow tip #1 above and have great insight and involvement in your child’s healthcare, emotional and social well-being, educational development, and extracurricular and sports activities, you likely are on your way to showing that you have a better relationship with your child. However, being involved and present is only one aspect of a health parent-child relationship. Having quality interaction with your child and a winning parenting style is also paramount.

Psychological research points to an authoritative parenting style as being the best approach for most children.25 Authoritative parents recognize the importance of having rules and firm boundaries, but they are not drill sergeants. They are flexible and state the reasons behind the rules they make. They do not aspire to be their children’s best friends. Authoritative parents are nurturing and supportive and listen to what their children have to say, but do not always go along with their wishes.

If you have a good relationship with your child, your child may not like you every minute of the day, but in general, your child should feel love, trust, and respect for you. Parenting is tough and takes constant effort. The more you can work on your relationship with your child, the better your position will be to obtain sole physical custody.

4. Show that your child is more connected with friends and family while in your care

Children are better off when they have a network of friends and family close by that love and support them. See how high you rate on this factor by counting the number of statements you agree with below:

  • I have lots of family that live near me, including my parents, siblings, aunts and uncles, and cousins.
  • I have a close and positive relationship with my family
  • My children frequently spend time with my family and are close with them as well.
  • I have special family traditions that involve my children and my extended family.
  • My family comes to my children’s sports and extracurricular activities.
  • When I am unavailable to watch my children and the other parent also is not available, my family often help watch them.
  • My children have lots of friends in my neighborhood.
  • I have other children that live in my home, and my children are close with them.

After thinking about how you rate on the above list, apply the same list to the other parent. Do you score higher? If so, this best interests factor weighs in your favor, and you should emphasize it. If you do not live close to your family because you married someone in the military who received orders to go to a different state, consider whether moving closer to your family would be in your children’s best interests. Relocation cases are difficult to win, especially when a court order is already in place; however, if the move is in the best interests of the child (not just the parent) and does not negatively impact the relationship between the child and the other parent, Virginia courts may allow relocation.

5. Establish that you have been the primary caretaker of your child

The status quo is a powerful force in a child custody case. When children have a long term history of being in one parent’s primary care and are doing well, courts are hesitant to make significant changes. Many judges endorse the slogan, if it ain’t broke, don’t fix it.

If you already are the primary caretaker and your children are doing well, you likely have the upper hand. Now you just need to prove it.

Ways to prove you have been the primary caretaker

One way to prove that you have been the primary caretaker is to keep a calendar showing the days you have had parenting time with your child.26 If you do not already have a calendar, you can create one by going through old text messages and other communications to see when exchanges occurred. Count the number of days you have had your child during the past year (or more) and show that it was more than the other parent. You can also maintain a journal to summarize major events in your child’s life that you were a part of.

Use your calendar and journal to explain your child’s historical routine. Show that it mostly involved you, and detail how the routine has been good for your child over the years and should not be changed. Finally, explain your plans for the future and how you will be able to maintain your role as primary caretaker.

If you are not already the primary caretaker, you will want to show that your child is suffering with the other parent and will be better off if your child lives primarily with you. If there already is a court order in place, you will have to show that a significant change in circumstance took place since the date of the last court order for the judge to grant you sole physical custody. Some potential reasons to argue for a change to sole physical custody include:

  • the other parent has abused or neglected the child
  • there is domestic violence in the home
  • the home environment is unsafe or inappropriate
  • the other parent has a substance abuse problem
  • the child is failing school and the other parent is not properly addressing the child’s education
  • the child has a serious issue that the other parent is not appropriately handling, such as physical or mental health problems
  • the other parent is engaging in parental alienation that is derailing the parent child relationship and emotionally harming the child.

6. Show that you support the other parent’s contact and relationship with your child, unless the other parent is guilty of true family abuse.

Five actions to take:

  1. Set aside your negative emotions and find something positive to say about the other parent.
  2. If you cannot watch your children for an extended length of time, give the other parent the opportunity to do so before getting childcare.
  3. Encourage your child to talk with the other parent on the phone when he or she calls.
  4. Share information regularly with the other parent to facilitate his or her involvement, including sending pictures of your child, medical information, academic information, sports and other extracurricular schedules. Consider using a parenting app such as Our Family Wizard to make it easier to share information.
  5. Allow the other parent to have reasonable access and visitation of your child, except for true cases of family abuse where your child’s safety is in jeopardy. If you are unsure what is “reasonable” you should seek the advice of a Virginia child custody attorney. You can quickly lose your bid for sole custody if the judge determines you failed to provide reasonable access. If there is already a court order in place, you must make sure you follow your court order and do not play games with exchange times. You should show a willingness to exchange days and alter the schedule when important events come up. Additionally, you need to be receptive to the other parent’s request for additional time and allow for extra time where appropriate and reasonable.

Ten actions to avoid:

  1. Do not prevent the other parent from seeing your child because he or she stops paying child support.
  2. Think twice about cutting off contact between the other parent and your child in retaliation for something the other parent has done to you.
  3. Do not engage in parental alienation. In other words, do not manipulate your child into turning against the other parent.
  4. Never tell your child that the other parent is a bad person or does not care about them.
  5. Do not talk badly about the other parent in front of your child.
  6. Never refer to the other parent by his or her first name. Always call the other parent “mom” or “dad.”
  7. Do not withhold important important information about the child from the other parent, such as placing the child into therapy without their knowledge.
  8. Do not interfere with or cutoff phone calls between the child and the other parent.
  9. Never withhold your child’s contact with the other parent unless there is true family abuse and your child’s safety is at risk. Talk to a Virginia child custody lawyer regarding whether your situation qualifies as family abuse.
  10. Do not list a stepparent or other family member or friend as an emergency contact in place of the other parent

7. Demonstrate that you co-parent and try to peacefully resolve disputes

Use the following tips to better co-parent and peacefully resolve disputes:

a. Choose your battles wisely

Do not try to micromanage the other parents day-to-day decisions. Big decisions regarding your child’s education, medical care, and religious upbringing are worth fighting over. If you can agree on small decisions, such as screen time, diet, and bedtime routine, that’s great. If not, let it go. Constant fighting over small things is not good for your child and not good for your bid for sole custody.

b. Keep communications child-focused

It is tempting to bring up past relationship issues, but you have to move past this. All communications should be brief, to the point, and about your child. You do not have to respond to every message. Make your point and then respectfully end the conversation.

c. Keep communications business-like

It is natural to feel frustration and emotion when you do not agree with the other parent’s choices and behavior. But you have to avoid showing your feelings. If you communicate by text message, have a friend or partner look over your messages before you send them if you are concerned about how they might be received. Some parenting apps such as Our Family Wizard can screen your messages for tone before you send them. Remember that when you go to Court all of your text messages will potentially be discoverable. When you send messages think about the language you choose and whether you would be okay with a judge reading your messages. Dropping the f- bomb repeatedly and making threats is obviously something you will want to avoid.

d. Where necessary, communicate in writing

If you are dealing with a difficult parent, you should keep a written record of your communications. That means using a co-parenting app, texting, or emailing. Having a written record prevents the other parent from accusing you of saying things you never did and gives you evidence when the other parent acts badly. People usually act better when there is a record of their statements.

e. Leave your children out of adult matters

Do not use your children as messengers, no matter how old they are. Issues need to be kept between adults. Also, do not share any court paperwork with your children. As discussed above, they likely will have a guardian ad litem who can discuss the court matter with them in an age appropriate matter.

f. Be flexible and willing to compromise

Focus on what is most important to you and be willing to bend on other things. Respect the other parent at all times, even if you do not agree with him or her. How you frame a discussion is important to reaching agreement. If the other parent feels attacked by your comment, you can expect a defensive response. Instead, frame the issue by suggesting it is something that would serve the child’s best interests and give a succinct basis for your opinion. After that, invite their comment, and then truly listen and show that you respect what they have to say even if you do not agree with it.

8. Establish that your child prefers to live with you, if your child is old enough and mature enough to express a preference

There is no set age in Virginia when children get to decide who they want to live with. A child’s opinion is important, but it is just one factor that a judge will weigh when deciding what custody arrangement is in the child’s best interest. Most judges will give significant weight to the opinions of high school age children, a reasonable amount of weight to middle school aged children, and little to no weight to elementary school aged children. Beyond age, the maturity and intelligence of the child also play a role when it comes to how much weight judges give to a child’s opinion. If the high school aged child is a juvenile delinquent that wants to live with the parent that has no rules or consequences, a judge is not going to care about what this child wants.

You should not interrogate your children or pressure them into saying they want to live with you. This will cause you to look very bad in front of a judge. You should shield your children from court litigation as much as possible. Custody battles can wreck children emotionally. Save them from this harm as much as you can. If your children spontaneously express an opinion you can make note of this, but be very careful to avoid coaching their testimony.

In most custody cases, the court will appoint a guardian ad litem for the child. A guardian ad litem (GAL) is an attorney that is selected to represent the best interests of the child. The GAL is required to meet face to face with your child and discuss the custody case in an age appropriate manner. At the time of the hearing the GAL will make a recommendation to the judge regarding who should have custody. Your children will have the chance to discuss their wishes with the GAL, and the GAL is required to report their wishes to the judge if they differ from their recommendation. If you know that your child prefers to live with you, you should schedule a time for your child to meet with the guardian ad litem at the beginning of your case. If an older child expresses he or she wants to live in your sole custody, this can be a deciding factor in your case. Older children (usually teenagers) can come to Court to testify about their wishes. The judge will hear from them in a back office (called the Judge’s chambers) away from the parents. The GAL is also present for the discussion. Children should not be asked to testify unless absolutely necessary.

9. Prove that you have a safe and stable home free from abuse and neglect.

Domestic violence is no laughing matter. It is not good for you and most certainly is not good for your children. Be very careful about who you welcome into your home. Check their background, and if they turn out to be someone other than who you expected, do not be scared to take action to remove them from your life. Your home should be a safe and peaceful environment where your children feel at ease. If there is constant yelling and physical violence, your children will be put under stress and will act out in all sorts of ways. Their emotional health will suffer and they probably will have issues at school and socially. If your safety is at risk, please get the help you need. Call the police in emergency situations, and where appropriate file for a protective order. A protective order can bar the abuser from coming to your residence or having contact with you. See Protective Orders in Virginia – A Guide for Victims for more information about protective orders.

10. Argue other best interests factors to get sole custody

The first nine tips relate to the best interests factors listed in Virginia Code § 20-124.3. The 10th factor allows the court to consider any other factors related to the best interests of the child. One other factor identified by some Virginia courts is the stability of the child.27 This is covered to an extent in tip #5 above regarding having a history of primary caretaker status but is worth emphasizing again. If your child is doing well and granting sole physical custody to you would lead to the least amount of disruption in the child’s life, this “other factor” should be highlighted.

11. Prepare your evidence to present to the guardian ad litem and the judge

Early preparation is the key to a successful bid to get sole custody. As soon as possible, you should assemble the following types of evidence:

a. Communications

Download all of your texts and other communications. If you have an iPhone, Decipher TextMessage is a good choice. For Android, you can try SMS Backup Print and Restore. Using an app is much quicker and easier than screenshotting all of your messages. However, iPhone messages and some other messaging apps allow for edits to be made after a message is sent. If the other parent sends a damning message, you should screenshot it to be safe. Include as much information in the message as possible, such as date/time, full sender identity, etc. If there is any question about whether the text messages are “original” under Virginia evidence rules, maintain the text messages on your phone and bring your phone to court. You will have to get permission from the Judge to bring your phone past the security check. Usually you can leave the phone in a locker and come back to get it if the Judge gives permission.

b. Audio and video recordings

If you recorded the other parent saying something or doing something that goes against the child’s best interests, include this as part of your evidence if the recording is legal. If you were a party to the conversation (meaning the phone call was between you and the other parent), the recording is likely legal under Virginia law. Talk to a Virginia child custody lawyer to determine whether the recording is legal and whether it can or should be used in court. Recordings can be used in certain circumstances but not others under Virginia evidence rules.28

c. Educational records

Go to your school’s parent portal and save all recent academic progress information, including progress reports, report cards, behavior and attendance reports. Locate any assessments done and any letters from teachers regarding any issues. Use the documents to show that you are involved in school and are properly addressing your child’s educational needs.

d. Medical and therapy records

If your child is healthy you may not need medical records; however, if your child has any significant medical or mental health concerns you should get a copy of recent records showing diagnoses, treatment plan, medications prescribed, etc.

e. Extracurricular and sports records

Get a copy of your child’s sports schedule and any awards and achievements they have received.

f. Social media posts

If there are any social media posts that put you or the other parent in a bad light, these should be shared with your child custody attorney.

g. Criminal record and child protective services documents

If you have a criminal record or history with any child welfare agency such Virginia Child Protective Services (CPS), locate any records you have and share them with your child custody lawyer. Explain your situation so your attorney can prepare a defense if needed. If you suspect the other parent has a criminal record or CPS record, let your child custody attorney know this so he or she can investigate this further.

h. Witness statements

If any friends, family, or other individuals have witnessed any events relevant to your custody case, get them to make a statement to your custody attorney. Just know that written statements are not admissible in court since they constitute hearsay. Generally, witnesses have to appear in court and testify under oath in front of a judge for their statements to come into evidence.

i. Pictures of your home and your child

Take a bunch of pictures of your home, including the exterior of the residence and interior rooms with special emphasis on the child’s room. Locate several pictures of you with your child engaging in meaningful activities.

j. Deed or lease for you home

If anyone is questioning your stability, get a copy of your deed showing home ownership or a copy of your lease showing you have made a long term commitment to your living arrangements. If you are staying with family temporarily, make sure your family will testify that you are welcome to stay with them indefinitely. Be prepared to discuss your plan for long term living arrangements.

k. Parenting calendar

A parenting calendar serves at least two important functions. First, you can use it to show what the past parenting schedule has been. Second, you can use it to demonstrate your proposed parenting schedule going forward, including the school year, summer, and holidays. Color code it to show the days that go to you and the days that go to other parent. Popular parenting apps such as OurFamilyWizard and Talking Parents have calendars you can use. If you do not want to use a parenting app, you can download a free calendar template.

l. Journal and case timeline

Make a detailed timeline showing all important events and dates pertaining to your child. If you have documentary evidence to support your summary, list the evidence your have (such as text messages, photos, emails, etc.) next to each entry in the timeline. If you already maintain a journal, creating a timeline should be easy.

Presenting your evidence

After you assemble your evidence, make sure to promptly send it to your child custody lawyer, if you have one. Your lawyer can then write a position paper for the guardian ad litem and include your most important evidence as attachments. The position paper states what you are asking for, gives the reasons why, and provides the most pertinent documents that backup the reasons. A position paper is not required but is an excellent way to argue your case to the guardian ad litem early on in the process. The GAL does not decide your case but he or she plays an important role as an advocate for the child. If the GAL adopts your position for sole custody, you will be in a strong position at the time of trial.

12. Hire an experienced Virginia child custody lawyer

You can prepare your evidence, but can you properly present it in court? The Virginia rules of evidence dictate whether a judge can consider your documents and other evidence. If you do not comply with the rules of evidence, the judge can ignore key parts of your case. Virginia child custody attorneys are trained in the rules of Virginia evidence and can do the work for you. Even if you think you can argue your case yourself, you’ll quickly realize that the courtroom is an intimidating place, and the nerves will get to you. If you are up against an attorney, you run the risk of getting overpowered. Do not make the mistake of going through the process alone. You greatly increase your chance of getting sole custody if you hire an experienced Virginia child custody lawyer.

Frequently Asked Questions about Sole Custody in Virginia

1. Can you get sole custody through a protective order?

Yes, you can get sole custody through a protective order on a temporary basis. A protective order is a civil order that is designed to protect the safety of a an abused person and/or family or household member. To obtain a protective order, you must prove that an act of family abuse has occurred. “Family abuse” is defined as “any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person’s family or household member.”29 Protective orders are typically used to establish a court order that eliminates contact between the abuser and the victim but they also can be used to obtain sole custody temporarily.

2. Can you get sole custody through an emergency order?

Yes, you can get sole custody through an emergency order if you meet the legal standard. To obtain an emergency custody order, you must show that the child’s life, limb, or health is in danger and court intervention is necessary to protect the child’s welfare. The order is only temporary and can be reversed at a later court hearing. Some courts may issue the order on an ex parte basis, which means the court grants the order without notifying the other parent and giving him or her an opportunity to be heard. Virginia courts can exercise temporary emergency jurisdiction to grant sole custody under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) even if the child does not meet the normal residency requirements.30 If your child has been abused or neglected, you may also have a criminal complaint against the other parent or a complaint with Child Protective Services.

3. Can you change your child’s last name if you have sole custody in Virginia?

Having sole custody does not give you the right to change your child’s last name without notifying the other parent, unless a court has terminated the other parent’s parental rights. If the other parent does not agree with the name change, you must schedule a court hearing and provide substantial supporting reasons as to why the name change is in the best interests of the child.31 For more information on changing the name of a child, please see How Do You Legally Change Your Child’s Last Name in Virginia.

4. Can a parent with sole custody move out of state in Virginia?

Maybe. If you have a court order that grants you sole custody, you are required to give notice of a change in address to the court and the other parent at least 30 days in advance of the move.32 If you move, you will remain subject to the last court order. If the court order grants specific parenting time to the other parent, you will not be able to relocate the child if you cannot abide by the order. For instance, if your court order grants you primary physical custody and the other parent every other weekend visitation, you will not be able to move from Virginia to California and abide by such order. If the order simply grants reasonable visitation or does not say anything about visitation, then you are allowed to move out of state. Whether you should do so is a different question. You still must give notice to the court and the other party about the move. The other party may then seek to challenge the move.

5. What happens when a parent with sole custody dies?

When a parent with sole custody dies, the other parent automatically assumes sole custody unless his or her parental rights have been terminated.33 You can state your wishes as to who you want to have custody over your child in your will, however such wishes are not binding on a court. Virginia courts ultimately have the power to determine custody based on the best interests of a child. Your wishes may be relevant, however, if there is no living parent or the surviving parent is not a fit and proper person to have custody.34

No. When a court grants sole legal custody this is not the same thing as terminating the other parent’s parental rights. Courts can only terminate parental rights against a parent’s wishes in limited circumstances, such as abuse or neglect of a child that cannot be reasonably remedied. In general, a parent cannot voluntarily terminate his or her parental rights, unless a third party, such as a stepparent, adopts the child and assumes the role of a parent.

7. What are some reasons for filing for sole custody?

The following are some reasons you may want to consider filing for sole custody:

  1. Abuse or neglect of the child
  2. Incarceration
  3. Drug or alcohol abuse that present a danger to the child
  4. Relocation. The other parent has moved far away and is not part of the child’s life.
  5. Mental illness that presents a danger to the child
  6. Unsafe living environment
  7. Parental alienation

8. What are the chances that you will get full custody?

As you can see from this article, there are a lot of factors and circumstances that go into the decision to grant sole custody. Every case is unique, making it hard to predict the likelihood of gaining full custody. If you can prove one or more of the 7 reasons listed immediately above, you will have higher likelihood of winning sole custody. The judge ultimately will decide what he or she believes is in the best interests of the child.

9. How much does it cost to file for sole custody in Virginia?

As of the time of this writing, it costs $25 to file a petition for sole custody in Virginia.35

10. Can sole custody be reversed in Virginia?

Yes, sole custody can be reversed in Virginia in one of three ways:

  1. Appeal. You can appeal a sole custody determination and have the decision reversed on appeal. To appeal a decision of the Juvenile and Domestic Relations District Court, you must file an appeal within 10 days. There are other appeal requirements that also need to be followed. Upon appeal, you get a new trial in the Circuit Court, which provides a new opportunity to get sole custody. At the Circuit Court level you also can file an appeal to the Virginia Court of Appeals if the Circuit Court abused its discretion or committed some other form of legal error. If you win the appeal, the case may be sent back to the Circuit Court for a new trial on some or all issues.
  2. Motion to Amend Custody. You file a motion to modify the sole custody determination if there has been a material change in circumstances since the sole custody order was granted. As a practical matter, most courts in Hampton Roads, Virginia look skeptically on motions to amend that are filed very close in time (usually less than six months) after the sole custody order is granted. If an immediate change is desired, the better option is usually to file an appeal.
  3. Agreement. Parents can agree to reverse sole custody. The agreement should be reduced to a court order if you want it to be enforceable. Otherwise, the other parent can change his or her mind.

11. Can a guardian ad litem decide sole custody?

No. A guardian ad litem does not have the power to decide sole custody. Only the judge can make the decision. However, the guardian ad litem can recommend sole custody, which the judge will take into consideration.

Contact a Virginia Beach Child Custody Lawyer Today

Still wondering how to get sole custody in VA? Please give Jordan Fanney a call at 757-491-1841 or send him a message through his online contact form to schedule a consultation to go over the specific details of your case and develop a plan to maximize your chance of winning full custody.

About the Author

Jordan Fanney is a Virginia Beach child custody lawyer that can help you get sole custody

Jordan A. Fanney, Esq. is an experienced Virginia Beach child custody lawyer who works for Poole Brooke Plumlee PC.  He practices family law in Virginia Beach, Chesapeake, Norfolk, Portsmouth, Suffolk, Hampton, Newport News and the surrounding area.
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Endnotes

  1. Va. Code § 20-124.2(B). “In matters of custody, visitation, and related child care issues, the court’s paramount concern is always the best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). ↩︎
  2. Va. Code § 20-124.3. ↩︎
  3. “[A]s long as the trial court examines the factors, it is not ‘required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors.'” Cloutier v. Queen, 35 Va. App. 413, 425, 545 S.E.2d 574, 580 (2001) ↩︎
  4. Va. Code § 20-124.1. Brown v. Brown, 30 Va. App. 532, 544-45, 518 S.E.2d 336, 342 (1999).  ↩︎
  5. Va. Code § 20-124.1. ↩︎
  6. See Brown v. Brown, 30 Va. App. 532, 544-45, 518 S.E.2d 336, 342 (1999), stating “Because Code § 20-124.1 and 20-124.2 permit the court to fashion any combination of joint legal custody which is in the best interests of the children, the trial court had authority under Virginia’s statutory scheme to bifurcate the issues over which mother and father have decision-making authority in this case, giving mother the authority to make decisions regarding the children’s education while reserving to father the ability to make all other decisions associated with legal custody.” ↩︎
  7. Section G3 of Virginia Code § 20-108.2, the child support statute, states that “shared custody child support” applies when a party has custody of a child for more than 90 days in a year. Sole custody child support applies when the payor has the child for 90 days or less in a year. Although the child support statute is separate from the child custody statute, it pertains to the same subject matter. “Statutes which relate to the same subject matter should be read, construed and applied together so that the legislature’s intention can be gathered from the whole of the enactments.'” Alger v. Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765, 767 (1994) (quotingBlack’s Law Dictionary 791 (6th ed. 1990) (defining in pari materia rule of statutory construction)).  ↩︎ ↩︎
  8. See Id. ↩︎
  9. A court can deny this right for “good cause shown” or “In the case of health records, access may also be denied if the minor’s treating physician, clinical psychologist, clinical social worker, or licensed professional counselor has made a part of the minor’s record a written statement that, in the exercise of his professional judgment, the furnishing to or review by the requesting parent of such health records would be reasonably likely to cause substantial harm to the minor or another person. If a health care entity denies a parental request for access to, or copies of, a minor’s health record, the health care entity denying the request shall comply with the provisions of subsection F of § 32.1-127.1:03. The minor or his parent, either or both, shall have the right to have the denial reviewed as specified in subsection F of § 32.1-127.1:03 to determine whether to make the minor’s health record available to the requesting parent.” Va. Code § 20-124.6.” ↩︎
  10. Va. Code § 16.243(b). ↩︎
  11. Va. Code § 20-79(c). ↩︎
  12. See Va. Code § 16.1-244, stating “when a suit for divorce has been filed in a circuit court, in which the custody…. of children of the parties…is raised by the pleadings and a hearing, including a pendente lite hearing, is set by the circuit court on any such issue for a date certain or placed on a motions docket within 21 days of the filing, though such hearing itself may occur after such 21-day period, the juvenile and domestic relations district courts shall be divested of the right to enter any further decrees or orders to determine custody…when raised for such hearing and such matters shall be determined by the circuit court unless both parties agreed to a referral to the juvenile court.  ↩︎
  13. Id. and Va. Code § 20-79(c). ↩︎
  14. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), noting that “a parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment.”  ↩︎
  15. Va. Code Code § 20-124.2(B). ↩︎
  16. Cooner v. Cooner, Record No. 1570-03-4 (Va. Ct. App. Apr. 20, 2004). ↩︎
  17. Tucker v. Clarke, No. 0037-12-4, 2012 Va. App. LEXIS 230, at *7-8 (Ct. App. July 17, 2012) ↩︎
  18. Roberts v. Roberts, 41 Va. App. 513 (2003). ↩︎
  19. Brown v. Brown, 2006 Va. App. LEXIS 103. ↩︎
  20. Bailey v. Serena, 2022 Va. App. LEXIS 314  ↩︎
  21. See Armstrong v. Armstrong, 71 Va. App. 97, 103, 834 S.E.2d 473, 476 (2019) stating that “Code § 20-124.1 does not make direct communication between the parties a prerequisite for joint legal custody.”
    ↩︎
  22. Witnesses generally have to come to court to testify. Written statements are considered hearsay and are objectionable under Virginia evidence rules. ↩︎
  23. Va. Code § 20-124.2(D); Va. R. Sup. Ct. 4:10(a). ↩︎
  24. Va. Code § 16.1-278.15. ↩︎
  25. https://www.apa.org/act/resources/fact-sheets/parenting-styles#:~:text=Authoritative,don’t%20always%20accept%20it. and
    https://www.ncbi.nlm.nih.gov/books/NBK568743/ ↩︎
  26. Go back to the date of the last custody order, or if no order exists as far back as possible. ↩︎
  27. See Bailey v. Sarina, No. CL 50712-06, 2021 Va. Cir. LEXIS 122, at *14 (Cir. Ct. May 6, 2021) stating “While it has been mentioned to a degree above, this case is beyond a crisis in terms of the child’s status as a pawn in the father’s war against mother. David will be entering high school in the fall of this year. The time is now for stability, certainty, and a cessation of the litigious hostilities the court finds to have taken place in this matter for more than a decade.” ↩︎
  28. Va. Code § 8.01-420.2. ↩︎
  29. Va. Code § 16.1-228. ↩︎
  30. Va. Code § 20-146.15. ↩︎
  31. Va. Code § 8.01-217(A).  ↩︎
  32. Va. Code § 20-124.5. ↩︎
  33. Va. Code § 64.2-1700. ↩︎
  34. Va. Code § 64.2-1701. ↩︎
  35. Va. Code § 16.1-69.48:5. ↩︎

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