If you’re contemplating divorce and you have minor children with your spouse, one of the most important decisions you’ll need to make involve your custody and visitation arrangements for those children.
Whether you come to mutually-agreed terms with your spouse or ask a judge to decide, you will need to formalize the custody split and visitation rights of each parent in the form of a court Order. These issues are often decided in conjunction with a child and/or spousal support Order, which may ensure that a parent has adequate means to maintain a safe home as well as provide for traditional needs that would be expected to raise a child.
Custody and visitation questions to ask
As you discuss custody and visitation issues with your soon-to-be ex, here are a few key questions you’ll want to ask yourselves or discuss with a legal professional. Keep in mind that these questions are designed to help you draft an uncontested arrangement. If you and your spouse cannot agree on these items, you may need to bring your case before a judge for a final decision.
1. Who is in the best position to provide a stable home for the child(ren)?
There are a few different potential custody arrangements you and your spouse can choose from. While 50/50 joint custody may sound like an ideal solution, it’s not right for every family, and the child’s well-being must be your first and foremost consideration.
If you decide against a 50/50 split, determine which parent is best equipped to provide an emotionally and financially-stable environment for the child, based on your and your spouse’s individual incomes, job schedules, and living situations. You should also consider who currently provides for the child’s physical and emotional needs.
2. What arrangement will cause the least disruption to the child’s life?
If one spouse will remain living in the marital home, it often makes sense for that parent to have primary custody in order to avoid disrupting the child’s education, extracurricular activities, and social engagements. Divorce can be difficult enough on a child without forcing them to change schools and make new friends in a new town. While a move like this may be unavoidable, consider if there is a way to ensure that other elements in the child’s life remain stable and steady during your divorce.
3. Is the child old enough to express their preference?
For very young children, it makes sense for the parents to have an absolute, final say over the custody and visitation arrangement. However, if your child is old enough to understand the circumstances and has a strong preference of which parent they’d like to live with, that should be taken into consideration as you make your decisions. Unless living with the “preferred” parent would put the child in a physically dangerous or emotionally harmful situation, it may be best to honor their wishes.
4. What kind of relationship do you want your child to have with their other parent?
Despite the issues that led you and your spouse to seek a divorce, you are both still a strong influence in your child’s life. It’s important to not allow your own emotions and pain to get in the way of what your child needs from each of you.
If you decide that one of you will get primary custody, try to create a visitation schedule that allows your child to maintain an emotional bond and positive relationship with their other parent. Some divorcing couples seek to “punish” one another by threatening to challenge custody and/or visitation rights, but doing this only punishes your child in the long run by damaging their parental relationships.
Circuit Court vs. JD&R: Where should we file our custody/visitation case?
If a couple is eligible to file for divorce under Virginia law, they will typically file the appropriate legal documents for their child support, custody, and visitation arrangements with their local Circuit Court as part of their divorce case. All of these matters will be combined under one case number and addressed in a single Final Order from the judge.
If you have not yet met Virginia’s required separation period and are ineligible to file for an uncontested divorce, but need to legally formalize your arrangements, you must file in a Juvenile and Domestic Relations (J&DR) District Court. In these courts, each matter (support, custody, visitation, etc.) is treated as a separate case with its own unique case number. J&DR Court also handles family law cases where the parents of the minor child were never married to each other.
You can learn more about the difference between Virginia’s J&DR and Circuit Courts, as well as which one you should use to file your case, in this blog post.
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My Legal Case Coach specializes in helping Virginia residents prepare and file their own family law cases. If you need help with any aspect of your divorce, including a settlement agreement, child or spousal support, custody arrangement, or visitation schedule, take our brief quiz to find out which of our step-by-step legal case form packets is right for your needs.
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