The court has the power to award joint legal custody, joint physical custody, or both.
"Joint custody" means (i) joint legal custody where both parents retain joint
responsibility for the care and control of the child and joint authority to make decisions
concerning the child even though the child's primary residence may be with only one parent, (ii)
joint physical custody where both parents share physical and custodial care of the child or (iii)
any combination of joint legal and joint physical custody which the court deems to be in the best
interest of the child.
"Sole custody" means that one person retains responsibility for the care and
control of a child and has primary authority to make decisions concerning the child.
In determining custody, the court shall give primary consideration to the best
interests of the child. The court shall 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. As between the parents, there shall be no presumption or inference of law
in favor of either. The court shall give due regard to the primacy of the parent-child relationship
but may upon a showing by clear and convincing evidence that the best interest of the child
would be served thereby award custody or visitation to any other person with a legitimate
interest. The court may award joint custody or sole custody.
The Virginia statute 520-124.3 takes into consideration the following factors
when determining custody and visitation:
- The age and physical and mental condition of the children, giving due
consideration to the child's changing developmental needs.
- The age and physical and mental condition of each parent.
- 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 and intellectual needs of the child.
- The needs of the children, giving due consideration to other important
relationships of the child, including but not limited to, siblings, peers, and extended family
- The role that each parent has played, and will play in the future, in the
upbringing and care of the children. Primarily the court gives consideration to the best interest
of the children and there is no presumption in law which favors either parent.
- The propensity of each parent to actively support the children's contact
and relationship with the other parent, the relative willingness and demonstrated ability of each
parent to maintain a close and continuing relationship with the children and the ability of each parent to
cooperate in matters affecting the children.
- Reasonable preference of the children if the court deems the children to be
of reasonable intelligence, understanding, age, and experience to express such a preference.
- Any history of family abuse.
In determining the amount of child support this same statute also provides that it shall be based
upon the following:
- The age and physical and mental condition of the children.
- The independent financial resources, if any, of the children.
- The standard of living for the family established during the marriage.
- The earning capacity, obligations and needs, and financial resources of
- The education and training of the parties and the ability and opportunity of
the parties to secure such education and training.
- The contributions, monetary and non-monetary, of each party to the well
being of the family.
- The provisions with regard to marital property.
The Code of Virginia mandates a method of determining child support by using
guidelines based upon the gross income of the parties. These guidelines are used in conjunction
with the factors listed in Section 20-107.2 as shown above. The formula takes into consideration:
- The number of children for whom support is sought is determined.
- The gross monthly income for both parties includes income from all
sources and includes salaries, dividends, interest , trust income, social security benefits,
worker's compensation, disability insurance benefits, spousal support, rental income, etc. It
does not include child support received.
- If spousal support is paid by one parent to the other, this amount is
subtracted from the payer's column and included in the payee's column.
- If either parent has income from self-employment from a partnership or a
closely held business, reasonable business expenses can be deducted.
- (a) From the tables found in Section 20-108, the basic child support
obligation is determined from the guidelines which is dependent upon the combined monthly
gross income and the number of children for whom support is sought.
(b) Extraordinary medical and dental expenses can then be added to
this basic figure. Also, any costs for health care coverage when actually being paid by a parcnt,
to the extent such costs are directly allocable to the child or children beyond whatever coverage
the parent providing the coverage would otherwise have, shall be added to the basic child support
obligation. However, the monthly obligation of the non-custodial parent shall be reduced by the
cost for health care coverage to the extent allowable by this section when paid directly by the
(c) Sums for employment related child care expenses can also be
added into this figure.
- The total monthly child support obligation for the children in the family is
then determined by adding 6(a) (b) and (c) above.
- The payer determines the amount he or she pays to the other spouse by
calculating what percentage the payer's gross monthly income is of the parties' combined gross
This amount is a rebuttable presumption. This means that it is presumed to be
correct but can be rebutted by other conditional evidence. This additional evidence is where any
unusual circumstances are demonstrated to Court. This is also the place where most of the
litigation occurs, because the numbers are rarely in dispute.
There are different calculations which apply when the parties share or split
custody. The shared custody rules apply when each parent has physical custody of a child or
children born of the parties, born of either parent and adopted by the other parent, or adopted by
both parents, for more than 110 days of the year. Any calculation under this subdivision shall not
create or reduce a support obligation to an amount which seriously impairs the custodial parent's
ability to maintain minimal adequate housing and provide other basic necessities for the child.
The court shall have the authority to and may, in its discretion, order one party to
execute all appropriate tax forms or waivers to grant to the other party the right to take the
income tax dependency exemption for any tax year or future years, for any child or children of
the parties for federal and state income tax purposes.