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Child Custody
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Divorcing family trying to divide child custody

Virginia Custody and Visitation Lawyer

Every divorce case is difficult, but deciding who will have primary or sole custody of the child is even more trying. Deciding on custody arrangements can be strenuous and painful. It is almost always the most contentious legal issue in a divorce case. That is where a family law and divorce lawyer can help. At Montagna Law, we understand that every family is unique. We are here to help families across Hampton Roads establish a custody plan that is catered to their needs.


We are here to help you get through the complexities of your family law case.

Call (877) 622-8100 or complete the online contact form to request a free consultation.


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Virginia Custody and Visitation Attorneys

The qualified family law attorneys at Montagna Law have over 50 years of combined experience litigating custody and child visitation cases. We have helped hundreds of families preserve the parent-child relationship, and we always consider what is best for the child. Our attorneys are hands-on, dedicated, and compassionate. We care deeply about everyone who comes through our door.

If you want to avoid a contentious legal battle, we are certified mediation experts who have a great deal of experience bringing disparate parties to the table and working through issues that begin as contentious and end with preserving the dignity and even partial relationships of those involved.

In the end, we are knowledgeable, resourceful, caring, and aggressive when we have to be. We will be in your corner every single step of the way from initial legal advice and case consultation to any court cases we must pursue.

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What Are the Different Types of Custody in Virginia?

When it comes to child custody cases, there are essentially two types of custody: legal custody and physical custody. It is not a foregone conclusion that a parent who has one type of custody also has the other. Often, one parent may have physical custody while both share legal custody, or one can have legal custody while physical custody is shared. Parents can also sometimes maintain joint custody in both areas.

Legal Custody

Legal custody of a child refers to the ability and responsibility to make decisions regarding a child’s health and well-being, both physical and mental. The parent who has this form of custody determines where the child attends school, what doctors they see, whether they need mental health therapy, and other important decisions. Often, parents share joint legal custody for these decisions.

Physical Custody

Physical custody refers to the place where the child physically lives. Physical custody can take several forms. One parent may have sole physical custody, in which the child lives full time with that parent. One parent may have primary physical custody while the second has limited physical custody, where the child lives the lion’s share of the time with the parent who has primary custody. Finally, the child may split time evenly between the parents if physical custody is shared.

How Does the Court Decide Who Receives Custody?

Every judge will examine a variety of factors to determine who gets legal and physical custody of the child, but the primary consideration in all things is the child’s best interests. The courts need to determine where the child will thrive and where they will grow up with the best values, health, safety, and guidance. The primary factors reviewed in making this decision include:

  • Parental income
  • Age, mental, and physical condition of the parents
  • Preference of the child 

Parental Income

Parental income is important in that a parent who earns more money can usually provide better for the material needs of the child. Virginia courts take into consideration which parent can better provide clothing, adequate food, and a roof over their head. This is not the sole consideration, however; it can result in an increased order for child support as opposed to primary physical custody of a child, after all other considerations are made.

Age and Health of Parents

The physical and mental health of the parents, as well as their age, is an important consideration. An elderly parent, or a parent who has disabilities or severe mental health issues, may not be best able to provide strong guidance for a child, and the courts must consider this. If the parent cannot discipline the child properly or requires a great deal of care of their own, they may not be adequately able to care for the child.

Child’s Preference

If the child is mature enough, the courts will consider their preference. In Virginia, there is no set age for this to happen; the courts determine the weight of the preference based on whether the child seems to have a solid grasp of the circumstances, whether they seem to have the emotional maturity to make an informed decision, and their perceived intelligence. Regardless of the child’s age, the overall fitness of the parents will always be weighed more heavily in any visitation case.

father hugging his son at an airport

How Is Visitation Set Up for the Noncustodial Parent?

Visitation will be set up at the same time as the custody order, and usually forms a part of the custody decision. The overall court order for custody will determine such important issues as child support, where the child will physically reside, who makes important decisions about school, healthcare, and wellness, and precisely how visitation is to be structured.

If you do not agree with the visitation schedule ordered by the court, you may be able to file an appeal or ask for a modification of the decision. This can be a tricky prospect, and it requires extensive knowledge of how child custody laws work. If you disagree with the court’s custody decision and visitation rights, your child custody lawyers at Montagna Law may be able to help. Contact us by calling 757-622-8100 or use our contact form for a consultation.

What Is a Guardian Ad Litem in Virginia?

Guardian ad litem is a legal term that means “guardian for the suit.” In Virginia, when a divorce case gets especially contentious, and it is not clear where the child should reside to be the safest and healthiest, the judge can appoint an attorney to help determine the matter before the court.

The guardian ad litem must provide recommendations about the best interests of the client (the child, in a custody case). This is different from advocating for what the client wants. Most children, for example, would want to be with a parent who did not over-discipline them, who let them stay up late, and who did not make them go to school. That is obviously not in the child’s best interests. The court-appointed guardian’s job in a custody case is to look out for the child and make the right recommendations to support their continued wellness.

This is a case where the attorney appointed by the court is not tied to either parent, nor to the child specifically. They are expected to be a neutral third party who advocates for everyone to achieve results that are in the child’s best interests.

Can a Custody Agreement Be Modified?

Yes, in short, a custody agreement can be modified. It is not uncommon for one or both parents to decide that custody arrangements should change over the course of the child’s life. Obtaining such a modification for custody of the children, however, can be quite complex. It requires evidence that the modification is in the best interests of the child. It is always best to have legal counsel from a family law attorney for help when you pursue such a modification.

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How Can I Request a Custody Agreement Modification?

In Virginia, modifying a custody agreement can only occur when there is a significant material change in circumstances that affects the child’s best interests. This means that something like denial of visitation, poor communication, or changes in a work schedule are not usually sufficient; though, in the case of communication issues or visitation denial, other actions may be taken.

In general, the types of situations that result in custody modification involve major life changes. If a parent moves, the child’s medical or educational needs change, the parent’s new work schedule directly impacts the child, or one or both parents remarry, it can result in a change.

If the parent has a serious negative change, such as developing an alcohol or drug addiction or becoming abusive, placing the child at risk of domestic violence, this creates instability or a risk to the child that was not previously there. Such situations can also result in modification of a custody agreement.

Getting a modification of child visitation or child custody can be quite difficult. Whether you live in Hampton Roads or anywhere else in Virginia, when you need help pursuing such a modification, the child custody lawyers at Montagna Law may be able to help. Call our law firm at 757-622-8100 or fill out our contact form today to get legal advice and a case evaluation.

Do You Want to be Viewed as an Absentee Parent by Your Children?

No good parent wants to be out of their child’s life. Your children are everything to you, you want to be a part of their lives as long as possible, and you want as much parenting time as you can get. The Virginia child custody attorneys at Montagna Law have represented child custody cases all across our state in such areas as Virginia Beach, Norfolk, Suffolk, Chesapeake, and Newport News.

Our law office has over 50 years of experience with visitation rights and practice areas in all aspects of family law. For help with your custody and visitation agreement, contact us online today or call 757-622-8100 to speak with a member of our legal team about your case.

*The consult fee is $50 for up to ½ hr phone consults and $100 for up to 1 hr in-person consults. These consult fees are then applied to the retainer if the client retains us within 30 days of the initial consult.

Written By Jon Montagna

Attorney

Jon Montagna received a Bachelor of Arts in Literature from American University in Washington D.C. and graduated Cum Laude from the University of Miami School of Law in 1999. Jon practices law in the Hampton Roads Virginia area.