When a Virginia court decides custody or visitation, it must weigh the ten factors listed in Virginia Code § 20-124.3 to determine the best interests of the child in Virginia. No single factor decides the case, and there is no presumption favoring the mother or the father. The judge balances all ten against the evidence each parent puts on, and the strength of that evidence usually matters more than any one fact standing alone.
The same ten factors apply to every custody and visitation dispute in the Commonwealth, including the temporary orders a court issues while a case is still pending.1Virginia Code Commission. Virginia Code 20-124.3 – Best Interests of the Child; Visitation
The Ten Factors in Section 20-124.3
Nine of the factors are specific. The tenth is a catch-all.
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs.
- The age and physical and mental condition of each parent.
- The relationship existing between each parent and each child, with emphasis on positive involvement and the ability to assess and meet the child’s emotional, intellectual, and physical needs.
- The needs of the child, giving due consideration to other important relationships, including siblings, peers, and extended family.
- The role each parent has played and will play in the future in the upbringing and care of the child.
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied access or visitation.
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes about matters affecting the child.
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference.
- Any history of family abuse (as defined in § 16.1-228), sexual abuse, child abuse, or any act of violence, force, or threat as defined in § 19.2-152.7:1 occurring within the ten years preceding the filing.
- Any other factors the court deems necessary and proper.1Virginia Code Commission. Virginia Code 20-124.3 – Best Interests of the Child; Visitation
Judges have wide discretion in how much weight any one factor receives. A parent with a minor health issue won’t automatically lose custody if every other factor points in their direction. The statute creates a framework for individualized decisions, not a formula.
Health of the Child and Each Parent
The first two factors focus on health. Factor 1 looks at the child’s age, physical condition, and mental condition, with specific attention to changing developmental needs. A two-year-old needs a fundamentally different environment than a fifteen-year-old, and the court accounts for that. Factor 2 applies the same lens to each parent.
A parent with a chronic illness or mental health diagnosis doesn’t automatically face restricted custody. The question is whether the condition affects the parent’s ability to provide consistent daily care. A parent managing depression with treatment and maintaining a stable household is in a very different position than one whose untreated condition leads to neglect. A child with developmental disabilities or complex medical needs may do better with the parent who has the deeper understanding of those needs and the resources to meet them.
Caregiving History and the Parent-Child Relationship
Factors 3 and 5 usually work together. Factor 3 examines the existing relationship between each parent and the child, emphasizing positive involvement and the parent’s ability to accurately assess and meet the child’s emotional, intellectual, and physical needs. Factor 5 looks at the role each parent has played in raising the child so far, and the role each parent will play going forward.
This is where the day-to-day history matters. The parent who has consistently handled school pickups, medical appointments, homework, and bedtime routines has built a track record. That doesn’t mean a parent who worked longer hours has no claim, but the court values demonstrated caregiving over promises. Judges look at who actually showed up.
The forward-looking piece of Factor 5 also matters. A parent who has shifted work schedules to be more available, or who has a concrete plan for managing the child’s routine, can strengthen their position even if the other parent handled more caregiving historically.
Siblings, Extended Family, and Community
Factor 4 looks beyond the parents to the child’s other important relationships, including siblings, extended family, and peers. A custody arrangement that separates siblings, pulls a child away from grandparents who provide daily after-school care, or forces a teenager to leave a stable school and friend group can weigh against the parent requesting that arrangement. Courts try to minimize disruption when both parents are otherwise fit.
Cooperation and Support for the Other Parent
Factors 6 and 7 address cooperation, and judges take them seriously. Factor 6 evaluates whether each parent actively supports the child’s contact and relationship with the other parent, and specifically asks whether either parent has unreasonably denied access or visitation. Factor 7 looks at the broader ability to cooperate on decisions and resolve disputes without dragging every disagreement back to court.
A parent who badmouths the other in front of the child, blocks phone calls, “forgets” to pass along school information, or manufactures reasons to cancel visitation is building a record that will hurt them. Virginia courts are directed to assure children of frequent and continuing contact with both parents when appropriate, and the court takes a dim view of anyone who undermines that principle.
A parent who communicates respectfully, follows the parenting schedule reliably, and shows flexibility when scheduling conflicts arise is demonstrating the kind of behavior courts want to reward.
The Child’s Preference
Factor 8 permits the court to consider the child’s own preference if the judge determines the child has “reasonable intelligence, understanding, age, and experience” to express one. Virginia does not set a specific age at which a child’s opinion becomes relevant or controlling. A mature twelve-year-old might carry more weight than an immature fifteen-year-old, and neither has veto power over the court’s decision.
Judges typically gather this input through an in-chambers interview or through testimony, and they’re trained to spot coaching. A child who parrots one parent’s talking points, or whose preference clearly stems from one household having fewer rules, won’t move the needle the way a thoughtful, independent preference will. The child’s voice is one input among many.
History of Family Abuse or Violence
Factor 9 carries enormous weight. The court must consider any history of family abuse (as defined in § 16.1-228), sexual abuse, child abuse, or any act of violence, force, or threat (as defined in § 19.2-152.7:1) that occurred within the ten years before the petition was filed. Virginia law defines “family abuse” broadly to include any act of violence, force, or threat that results in bodily injury or places someone in reasonable fear of death, sexual assault, or bodily injury, committed by one family or household member against another. That definition covers physical violence, forceful detention, stalking, and criminal sexual assault.
The ten-year lookback window is a hard boundary. Abuse that occurred eleven years before filing falls outside the statutory scope, though the catch-all in Factor 10 could theoretically let a court consider older conduct in extreme cases. Within that window, the court examines criminal convictions, protective orders, and any documented evidence of abuse directed at the child, the other parent, or any household member.
When abuse findings are severe enough, the court can mandate supervised visitation or require completion of a treatment program before granting any custodial access. In cases involving a conviction for rape under § 18.2-61, a felony carrying at least five years in prison, the court has broad authority to restrict or eliminate a parent’s access to the child.
How the Abuse Factor Interacts With the Cooperation Factor
The statute expressly allows the court to disregard Factor 6 when it finds a history of abuse. That matters. Without that carve-out, an abuser could weaponize the “cooperation” standard against a victim who is maintaining distance for safety. If you are in that situation, the record of abuse under Factor 9 takes precedence over any claim that you are failing to support the other parent’s relationship with the child.
The Catch-All
Factor 10 allows the court to consider “such other factors as the court deems necessary and proper.” Judges use it to address circumstances the first nine factors don’t neatly cover: substance abuse that hasn’t produced criminal charges, the logistics of a proposed long-distance parenting schedule, work travel demands, housing stability, or the quality of the school district where each parent lives. If something genuinely affects the child’s well-being and doesn’t fit elsewhere, it comes in here.
What the Court Can Order After Weighing the Factors
After applying § 20-124.3, the court issues an order under § 20-124.2. Virginia recognizes three custody arrangements, and there is no presumption favoring any of them:2Virginia Code Commission. Virginia Code 20-124.2 – Court-Ordered Custody and Visitation Arrangements
- Joint legal custody, where both parents share decision-making over education, healthcare, and welfare even if the child primarily lives with one parent.
- Joint physical custody, where both parents share physical care of the child, though the split doesn’t have to be 50/50.
- Sole custody, where one parent has both primary physical care and the authority to make major decisions.
The statute directs courts to assure minor children of frequent and continuing contact with both parents when appropriate, and to encourage parents to share the responsibilities of raising their children. Between the parents, there is no presumption or inference of law in favor of either one. Being the mother doesn’t give you a leg up, and being the father doesn’t put you behind.
Temporary Orders Use the Same Factors
Custody cases can take months to resolve. Section 20-103 gives the court authority to issue temporary, or “pendente lite,” orders governing custody and support while a case is pending. These orders use the same best-interest factors from § 20-124.3, and they can also cover child support, exclusive use of the family home, health insurance, and spousal support.
A temporary order is not a prediction of the final outcome, but it sets the status quo both parents live under during litigation. As a practical matter, the parent with primary custody under the temporary order is often in a stronger position at trial because the court can see the arrangement working.
If a Parent Lives Outside Virginia
The best-interest factors only come into play once a Virginia court has authority to decide the case. If one parent has moved out of Virginia, jurisdiction becomes a threshold question. Under the Uniform Child Custody Jurisdiction and Enforcement Act at § 20-146.1, the primary basis for hearing a custody case is “home state” jurisdiction: the state where the child has lived with a parent for at least six consecutive months immediately before the case is filed. For a child under six months old, the home state is where the child has lived since birth. A Virginia court can make an initial custody determination only if Virginia qualifies as the home state, or if the home state has declined jurisdiction and the child has a significant connection to Virginia with substantial evidence available here about the child’s care.