Custody in Virginia.

Decisions against where the child lives

Va. Code § 20-124.2(B) puts all three options on the table without ranking them: "The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody." The same subsection directs the court to "assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children," and adds "As between the parents, there shall be no presumption or inference of law in favor of either."

What the judge must weigh

In determining best interests of a child for purposes of determining custody or visitation arrangements, including any pendente lite orders pursuant to § 20-103, the court shall consider the following:

1. 1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
2. 2. The age and physical and mental condition of each parent;
3. 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. 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. 5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. 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. 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. 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. 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. 10. Such other factors as the court deems necessary and proper to the determination.

The judge shall communicate to the parties the basis of the decision either orally or in writing. Except in cases of consent orders for custody and visitation, this communication shall set forth the judge's findings regarding the relevant factors set forth in this section. At the request of either party, the court may order that the exchange of a child shall take place at an appropriate meeting place.

Recently changed. The factor list itself has not changed since 2020. The section beside it, 20-124.2, was amended twice in 2026: chapter 711 provides that a person’s lawful possession or consumption of substances authorized under Title 4.1 or Chapter 34 of Title 54.1 does not on its own justify restricting custody or visitation unless other facts show it is not in the child’s best interest, and chapter 1116 added custody evaluations to subsection D.

What the child wants

No age is set. Va. Code § 20-124.3(8) counts "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." Age is one of four things the judge weighs in deciding whether to hear the child at all — there is no birthday at which a Virginia child gets to choose, and no age at which the court must ask.

Where there has been violence or abuse

Virginia does not create a rebuttable presumption against a parent with a history of abuse. Abuse enters as factor nine of ten. Va. Code § 20-124.3(9) requires the court to consider "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." The operative consequence is narrow but useful: "If the court finds such a history or act, the court may disregard the factors in subdivision 6" — meaning a parent who has kept a child away from an abusive co-parent need not be penalized under the "propensity to support the child's contact with the other parent" factor. Note the ten-year window on category (iv). In the mediation statute, Va. Code § 20-124.4(A) requires that "In assessing the appropriateness of a referral, the court shall ascertain upon motion of a party whether there is a history of family abuse" — which means someone has to raise it.

Mediation

There is a mandatory first step, and it is free. Va. Code § 20-124.4(A): "In any appropriate case the court shall refer the parents or persons with a legitimate interest to a dispute resolution orientation session to be conducted by a mediator certified pursuant to guidelines promulgated by the Judicial Council at no cost." The domestic-violence safeguard is that "In assessing the appropriateness of a referral, the court shall ascertain upon motion of a party whether there is a history of family abuse" — note that it takes a party's motion to trigger that inquiry, so raise it. If mediation does not resolve everything by the court's return date, "the court shall proceed with a hearing on any unresolved issue." Under § 20-124.4(B), "The fee of the mediator shall be $100 per appointment mediated and shall be paid by the Commonwealth," and a referral covering both custody or visitation and support counts as two appointments.

If the court appoints someone to look into it

Virginia has a rule that surprises parents who assume a guardian ad litem is routine. Va. Code § 16.1-266(F): "in cases where the custody of a child or children is the subject of controversy or requires determination and each of the parents or other persons claiming a right to custody is represented by counsel, the court shall not appoint counsel or a guardian ad litem to represent the interests of the child or children unless the court finds, at any stage in the proceedings in a specific case, that the interests of the child or children are not otherwise adequately represented." So if both parents have lawyers, the default is NO guardian ad litem for the child unless the judge specifically finds the child's interests are not covered. Under § 16.1-266(E), in the abuse, neglect, delinquency and related proceedings described elsewhere in that section, the court may appoint counsel or a guardian ad litem in its discretion. Under § 16.1-266(G), an appointed guardian ad litem may inspect and copy the child's records from agencies, schools, hospitals and health providers without the consent of the child or parents, on presentation of the appointing order.

Changing the order

Va. Code § 20-108 gives the court continuing power: on petition of either parent, on its own motion, or on petition of a probation officer or the Department of Social Services, the court may "revise and alter such decree concerning the care, custody, and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require." The section names one specific ground: "The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court." Servicemembers get docket priority for petitions based on a deployment-related change. The general two-part test Virginia courts apply — a material change in circumstances since the last order, plus a showing that a change would be in the child's best interests — comes from case law rather than this section. There is no statutory waiting period.

If you were never married

The custody standard is the same, but an unmarried father must first be legally recognized as a parent. Va. Code § 20-49.1(B) sets out how: by genetic tests affirming at least a 98 percent probability of paternity, which "shall have the same legal effect as a judgment"; or by "A voluntary written statement of the father and mother made under oath acknowledging paternity," which is binding and conclusive unless challenged for fraud, duress or material mistake of fact, and which either party may rescind within 60 days of signing unless a related court or administrative order was entered first; or as otherwise provided in that chapter. Parentage may also be established by a voluntary acknowledgment under § 63.2-1914 or a proceeding under § 63.2-1913. Once parentage is established, § 20-124.2 and § 20-124.3 apply the same way they do for married parents.