The legal standard for deciding who will be awarded custody of a child is “what is in the best interests of the child.” It is not “mom always wins.” Here are the statutory citations. We encourage you to read them. Virginia Code Sections
(detailed factors). Despite the uniformity in the decision making process that the Code attempts to achieve, and the “no-presumption” in favor of either party it seeks to impose, judges are human beings and they may view the same set of facts quite differently. Some judges are more liberal, some more conservative.
It is frequently (if not universally) said that the mother has the edge in custody litigation. Statistically speaking, this is true, but this is not the law. The main reason for the ‘mother-bias’ is most likely that mothers generally come into court with the children living in their homes. If the children are thriving, there more often than not is no real reason to risk a change to another home. Status quo is a powerful ally. However, there are some (many) judges who feel deep down that mothers make better single parents. These judges have a subconscious (sometimes overt) standard that parental unfitness must be proven to “deprive” a mother of custody. These judges are not without some support elsewhere in their thinking (although the legislature has outlawed it). We are, after all, part of the animal kingdom, and our observations of nature in general prove the strength and value of the maternal relationship.
Other written and unwritten doctrines and presumptions aid the court in determining the best interest of the child. To augment what we have provided above, here is our take on what are the most powerful arguments and what are the weakest arguments to present to the court:
- Continuity of Placement — If children are doing well where they are, do not mess things up by moving them. There are no courts in Virginia as of this writing where the father has an advantage in custody litigation. “Status quo” appears to be the most powerful factor. If a parent (mother or father) has had de facto custody for a reasonably long period of time, and assuming the children are faring well, the children will likely stay put.
- Children’s Preference — By law, a judge may consider whom the child wants to live with if the child is “old enough.” “Old enough” is not based so much on years as it is maturity, but twelve-ish seems to be around the area. The judge is not bound by what the child wants (e.g., my dad promised me a new car and won’t make me do my homework, so I want to go live with him).
Propensity of a parent to promote relations between the children and the non-custodial parent–This is a new factor, but a darned important one. This is a must read section because it reflects a real philosophical change in the approach that many judges take to awarding custody.
A parent who comes into court trying to slam-dunk the other parent (“He’s always coming home late and I’m sure he’s messing around.” “She doesn’t do any of the housework.” “He doesn’t even know the children’s names.”) is at a noticeable disadvantage. Why? Because all the judge sees is that the parent seeking custody hates the other parent. And that is bad for the children. Judges believe that, in the vast majority of cases, children need both parents involved in their lives. (Notable exceptions are the obvious ones–abuse, drunkeness, and the like.) A parent may not like any more the person who he or she picked to bear their child, but that gives that parent no reason to bad-mouth the other parent, and to physically or emotionally deprive the child of two parents. Better the parent should say “He’s a wonderful father/mother, even though we cannot get along together as a couple. He/She doesn’t spend as much time with the children as I do, or as much as I would like him to, but I know he/she loves them. So long as he/she keeps his girlfriends/boyfriends out of the children’s lives while they visit with them, he/she should see them as often as possible. And while s/he’s not the best housekeeper, it would be like the children camping out in the woods when they go over to his/her home. That would probably be fun for them.” That gives the judge the impression that the parent seeking custody knows how to accept the failings of another with good humor and in stride. The judge will sense that the custodian will try build the relation between the non-custodial parent and the children, and won’t be bad-mouthing the other in front of the children.
The court can and will consider the custodian’s age, health, wealth, religious beliefs, conduct, sexual preference, type of home, psychological evaluations; the location of the residences of the child’s siblings; the child’s school performance; or anything else the court considers important.
“I love them very much and will miss them terribly if they are not living with me.”
(Variance: “He doesn’t need them as much as I do.”)
“I make more money than my spouse and can buy them better things.”
(Typical response by judge: “Well, I can sure take care of that. And the children can remain put.”)
“My wife is the one who left the home. Therefore everything in the house, and the children she took with her when she left, should be mine.”
(Judges just love parents who consider children as property, don’t ya’ think?)
“I can’t have any more children.”
(And perhaps you shouldn’t, if that’s your best reason the ones you have now should be living with you.)
Remember what was written before: the test for custody is “Which parent can serve the child’s best interests?” The test is NOT “Which parent will have his or her interests served the best by having custody?”
If there is custody litigation, you must be able to show the judge that the child is better off with you. A photograph of you and your child having a good time doing things together at a particular moment is useful evidence, but live witnesses are much better. This is a good time to subscribe to and read publications such as Parents magazine. Buy some books about children, parenting, and getting children through divorce. Attend seminars and keep the brochures and literature. The important point here is to do these things for your child and for yourself. If you are doing it just to impress the judge, it will show.