What Are the Biggest Custody and Visitation Myths in Virginia?

Mothers do not automatically get custody. Your child does not get to choose at age 12. And a terrible spouse does not automatically mean a terrible parent in the eyes of a Virginia court.

Attorney Shameka L. Rhoades of Trustice Law Group clears up the most common custody and visitation myths she hears from clients, and explains what Virginia courts are actually focused on when they make these decisions. In this segment from ABC News Showcase, Shameka covers:

• Whether mothers automatically get custody in Virginia
• The difference between legal custody and physical custody
• Whether children get to decide which parent they live with
• Whether being the primary caregiver guarantees custody
• Why a bad spouse does not equal a bad parent in court

Watch the full segment below:

Myth 1: Mothers Automatically Get Custody

This is one of the most persistent myths in family law. And it is simply not true in Virginia.

There was a time when courts leaned toward mothers as the default custodial parent. That era has passed. Virginia courts now make custody and visitation decisions based entirely on what is in the child’s best interests, and that determination can go either way.

Fathers regularly come in and are awarded full custody. The starting point for Virginia courts is not which parent is the mother. It is what arrangement genuinely serves the child.

The Difference Between Legal Custody and Physical Custody

These are two separate things that courts evaluate independently.

Legal custody is about decision-making authority. Who decides where the child goes to school? Who makes medical decisions? Who determines religious upbringing? Legal custody can be joint, meaning both parents share these decisions together, or sole, meaning one parent has the authority to make all major decisions alone.

Physical custody is about where the child lives. Who do they spend their time with? Who manages the everyday responsibilities of caring for them?

Courts can award any combination of these. A child might live primarily with one parent while both parents share legal custody. Each piece is evaluated on its own based on the evidence and the circumstances.

Myth 2: Children Get to Choose at Age 12 or 13

This is one of the most widely repeated misconceptions Shameka hears from clients.

There is no magic age in Virginia at which a child gets to decide which parent they live with. Children never make that decision. What Virginia courts do is consider the child’s preference as one of the factors in the custody and visitation analysis, at a point when the child is old enough and has the mental capacity to form and express a genuine opinion.

In practice, this is sometimes communicated through a guardian ad litem, an attorney appointed specifically to represent the child’s interests in court. The guardian relays the child’s preference to the court.

The court then weighs that preference alongside nine other factors. It is one consideration among many, not a deciding vote.

Myth 3: Being the Primary Caregiver Guarantees Custody

Being the parent who has done the majority of caregiving is a significant factor in Virginia’s custody and visitation analysis. But it does not guarantee a particular outcome.

Courts look at caregiving history as one important piece of the picture. But they also look at each parent’s relationship with the child, the child’s emotional needs, each parent’s ability to support the child’s relationship with the other parent, and whether either parent presents any safety concerns.

Caregiving history matters significantly. It does not override everything else.

Myth 4: A Bad Spouse Means Losing Custody

This is where many clients arrive with the most certainty and leave with the most surprise.

How a person behaved as a spouse has very little bearing on how a Virginia court views them as a parent. A spouse who committed adultery, who was emotionally difficult, or who was simply a poor partner does not automatically face negative consequences in custody and visitation proceedings.

Courts are not evaluating the marriage. They are evaluating the parenting. A person can have been a genuinely terrible partner and still be an exceptional, present, loving parent. Virginia courts recognize this distinction.

The only exception is when behavior in the marriage directly affected the child or created safety concerns. That is when it becomes relevant to the custody and visitation analysis.

What Virginia Courts Are Actually Focused On

Every custody and visitation decision in Virginia comes back to one standard: the child’s best interests.

Under VA Code Section 20-124.3, courts evaluate a specific set of factors including the child’s age and physical and emotional condition, each parent’s ability to meet the child’s needs, the relationship each parent has built with the child, each parent’s willingness to support the child’s relationship with the other parent, and any history of abuse or safety concerns.

The child is the only person whose interests drive the outcome.

Trustice Law Group: Virginia Custody Attorneys Who Know What Courts Actually Look At

At Trustice Law Group, we help parents across Virginia understand exactly how custody and visitation decisions are made, what evidence matters, and how to present the strongest possible case for their children’s best interests. We are a female-owned Virginia family law firm.

Real Law. Real Talk. Real Options.

Request a consultation or call us at 804-593-0788.

#TrustUsWithYourJustice

FAQs

Do mothers automatically get custody in Virginia?

No. Virginia courts decide custody and visitation based on the child’s best interests, not the parent’s gender. Fathers are awarded custody regularly when that is what the evidence supports.

Can a child choose which parent to live with in Virginia?

No. Children do not make this decision. A mature child’s preference may be considered by the court as one of many factors, but the court makes the final determination based on the child’s best interests.

Does being the primary caregiver mean I will get custody?

It is an important factor but not a guarantee. Courts weigh caregiving history alongside many other considerations and make decisions based on the full picture of what serves the child.

Will my spouse’s bad behavior in our marriage affect their custody rights in Virginia?

Generally no. Courts evaluate parenting, not the marriage. Conduct that directly affected the child or created safety concerns may be relevant, but being a poor spouse does not automatically affect custody and visitation rights.