Factors for Determining What i...

Factors for Determining What is in the Best Interests of the Child

When determining the custody and visitation arrangements for minor children, there are ten statutory factors that Virginia courts look to for guidance.  No factor is considered to be more important that any other; they are looked at and given the consideration necessary under the circumstances. For purposes of this blog, I am going to break these factors down into two main categories: the first category being factors that deal directly with the child, and the second being factors that deal with the parents.

In the first category, the first factor is the age and physical and mental condition of the child.  When making this assessment, the court takes into account that a child’s needs are different from an adult’s by giving due consideration to the child’s changing developmental needs, which vary from one child to the next.  The court also looks to the needs of the child in terms of other important relationships that they may have with people such as their siblings, peers, and extended family members. The last factor in the first category is the reasonable preference of the child in terms of which parent they would rather live with.  The court may or may not give the child’s preference much consideration depending on whether the court determines the child to be of reasonable intelligence, understanding, age, and experience to make this decision for themselves.

The first factor in the second category takes into account the physical and mental condition of each parent.  If one parent’s physical and mental condition is poor, they may not be able to provide care in line with the best interests of their child.  The court will also look to the relationship that each parent has with each child, specifically whether the parent has positive involvement in the child’s life and whether the parent is able to recognize and fulfill the child’s needs.  Also important is the role that each parent has played and will play in the child’s future. Additionally, the court considers whether a parent is likely to actively support the child’s contact and relationship with the other parent. This can be shown by the way that the parent talks about the other parent in front of the child or whether the parent has ever unreasonably denied visitation to the other.  Last but not least for the second category is the willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child.

Two additional factors that don’t quite fit into either of the two categories are whether there is any history of family or sexual abuse, and a catch all factor.  The catch all just means that whatever else the court thinks is necessary to properly make a determination as to custody and visitation will be taken into consideration.

As stated above, it is important to remember that no individual factor carries more weight than another; they will be weighted as the best interests of the child require.

Thanks to our friends and contributors from TNG Legal for their insight into family law.