Special Circumstances in Virginia Child Custody

Special circumstances can affect the process and outcome of your custody case. Consult an attorney if your case involves any of the following situations.

History of crime, family abuse, neglect or substance abuse

If a parent has criminal convictions, faces corroborated allegations of family abuse or neglect, or struggles with substance abuse, courts typically presume the other parent should have sole custody (explained below). This presumption can be overturned if the parent proves their behavior is in the past or not detrimental to the children.

Severe instances of abuse and neglect can lead Child Protective Services to terminate the abuser's parental rights.

Supervised visitation and exchanges

When a parent's history includes crime, family abuse or neglect, courts often require their parenting time to come in the form of supervised visitation at a court-certified agency. There, professionals monitor the parent and children's interactions, possibly in a group setting with multiple families.

In some cases, a friend or family member can supervise visits. Courts order this when there's less risk to the children (e.g., if a parent abuses substances but has no history of crime, violence or neglect). The judge may allow one parent to choose the supervisor and location or require parents to agree.

In supervised exchanges, just the children's drop-offs and pickups are supervised — either at an agency or by a court-approved third party. Common in cases with domestic violence or significant conflict, supervised exchanges minimize or eliminate parents' in-person interactions.

Sometimes, courts order both supervised visitation and exchanges for one case, but this isn't required.

Protection from abuse (protective orders)

Victims of family abuse should consult with an attorney or legal aid office and review the domestic violence resources from the Virginia Department of Social Services.

These professionals and resources can help you request a full protective order, which may last up to two years, from Juvenile and Domestic Relations District Court (J&DR) — even if you're handling custody in Circuit Court.

In an emergency, you can ask J&DR to immediately issue a preliminary protective order via an ex parte request.

The pamphlet Protective Orders in Virginia — A Guide for Victims provides more information about the types of orders and how to request them. To fill out the paperwork to request a protective order, you can use the I-CAN online system, which is also available in Spanish.

If a protective order is issued when parents can't agree on custody, the courts typically order an investigation or evaluation before deciding custody and parenting time.

Guardians ad litem (GALs)

In Virginia, a guardian ad litem is an attorney appointed by the court to represent children much like they would represent an adult client. In addition, they do an investigation to gather case information for the court and make custody recommendations.

The GAL also helps children understand the custody process and assesses the reasonableness of children's custody preferences (if any).

GAL rates are $75 per hour for in-court time and $55 per hour for out-of-court time.

In many counties, J&DR Courts automatically appoint a GAL if neither parent has a lawyer. These parents usually don't have to pay the GAL's fees.

If either parent has a lawyer, J&DR only appoints a GAL when child abuse is alleged or when the judge thinks parents are overlooking the children's best interests. These are also the factors that prompt Circuit Court to appoint a GAL, regardless of whether parents have lawyers. In both courts, parents in these scenarios share the GAL's fees.

In either court, a parent can motion to have a GAL appointed. If the judge approves the request, the motioning parent pays.

Parenting coordinators

Parenting coordinators are family psychologists and custody experts who assist the court and parents in high-conflict cases. Depending on the judge's orders, they may do an evaluation of the case for the court.

Coordinators can also help parents implement court orders following the conclusion of a custody case. Often, they act as a go-between to reduce parents' interactions while helping with communication skills. If parents allow, their coordinator can make decisions for them when they can't agree.

A judge may order coordination when conflict between parents affects the children. In addition, a parent can request orders for coordination, or parents might agree to it on their own. It's designed to be temporary — a step toward getting parents to co-parent successfully on their own.

Parenting coordinators typically charge between $200 and $500 an hour. Parents share the cost equally or proportional to their incomes.

Uncommon custody arrangements

Courts prefer that parents share legal and physical custody whenever possible. However, there are alternative custody arrangements for unique situations. Parents can agree to these in a settlement, or the judge may order one in a trial.

Sole custody

Sole custody gives one parent sole legal custody (all decision-making power) and sole physical custody (all or the majority of parenting time). Often ordered when a parent poses a risk to children's safety and well-being, it may include supervised visitation.

When a parent has sole custody, the other parent must still pay child support, unless they give up parental rights for a step-parent adoption.

Split custody

In split custody, each parent has sole physical custody (and possibly sole legal custody) of different children from the relationship. For example, in divorces settled according to Judaic law, children over six live with the parent of the same gender. Split custody is also sometimes used when there's a large age difference between children.

Nesting (bird's nest) co-parenting

In a nesting co-parenting arrangement, children remain in the family home full time. Parents rotate living in the home according to their parenting time schedule, and they stay elsewhere when it's not their assigned time with the kids.

This arrangement can prevent the strain children may feel from switching homes frequently. Depending on the situation, it can be less or more expensive than each parent maintaining separate homes for the children. It can be permanent or used to help the children transition to living in two homes.

Nesting is only recommended for parents who communicate and cooperate exceptionally well. It may be particularly advantageous if their children have special needs or struggle with change.

Third-party custody or visitation

Anyone who has an established relationship with the children can file for legal and physical custody or visitation in J&DR Court. This includes grandparents, other family members, former step-parents, etc.

If the parents agree to the requests, they include them in a settlement agreement.

If either parent objects to giving a third party custody, the third party must show a history of caring for the children and prove they can meet the children's needs better than the parents.

If either parent objects to giving visitation to a third party, the third party must prove that denying the visitation would harm the children.

Undocumented parents

In Virginia, no law prevents undocumented parents from receiving custody. At the same time, no law prevents a judge from considering a parent's immigration status in custody decisions.

Before filing or responding to a case, undocumented parents should contact their local legal aid office or an immigration lawyer with experience in Virginia family law.

If a parent is detained or deported for immigration issues, they have the right to participate in the case remotely. They can use phone or video to participate in mediation, hearings and more.

Addressing special circumstances in a parenting plan

In Virginia, a parenting plan is strongly recommended for managing custody, particularly in cases with special circumstances.

If a lawyer or mediator is writing your plan, share with them any circumstances it should address.

If you're writing your own plan, you have the flexibility to include what you want. But it should use airtight language that leaves no room for interpretation.

The Custody X Change parenting plan template walks you through common provisions while letting you enter as many custom provisions as you want.

It's a sure way to get a plan that's tailored to your family and meets legal standards for formatting and language.