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Advice for Divorcing Dads Who Want to Retain Child Custody

Dads going through the divorce or other custody process in Virginia often believe the system is rigged against them. This frustration can boil over into a cynicism about the family law process, causing them to give up their rights or to act out in ways that may hurt their case. No doubt that family law and custody issues can be emotionally trying and many fathers do not want the courts to be involved in their personal lives, but dads should understand that the law is not stacked against them. Below are some aspects of Virginia law that can help dads to navigate the custody process in Virginia.

Virginia Does Not Give Preference to Mothers Over Fathers

In awarding custody, Virginia state law does not give preference to either parent. Instead, Virginia family law courts will award custody based on the best interests of the child. The best interests of the child determination includes an evaluation of several factors, such as:

  • The age, physical, and mental condition of each parent;
  • The relationship between each parent and the child, and specifically the positive involvement of each parent in the child’s life and ability to meet the child’s needs;
  • The propensity of each parent to support the child’s relationship with the other parent; and
  • The willingness of each parent to maintain the relationship with the child and resolve disputes with the other parent.

Thus, if a dad can demonstrate, through the above factors, that it is in the child’s best interest for him to retain custody, he should reach a positive custody determination.

The Law Favors Dads Over Non-Parents

When the mother is absent or otherwise not involved in a custody dispute for some reason (death, incarceration, etc.), sometimes another party, such as a relative, might try to seek custody rights over the rights of a dad. Fortunately, Virginia law creates a strong presumption in favor of a parent over a third party. However, this presumption can be overcome by a third party in a handful of situations, including:

  • Where a father has abandoned his child;
  • If the court finds that there are extraordinary reasons for removing the child from the father; or
  • If the father has been shown to be parentally unfit.

Avoid a Finding of Parental Unfitness

One of the most damaging findings that a court can make for a father wishing to retain custody is that he is parentally unfit. Such a finding can be based on evidence showing that the father has engaged in misconduct that affects the child, that the father has neglected the child, or that the father has failed to provide for the emotional and physical well being of the child. In addition, a court may consider the father’s home environment and, specifically, the moral climate of that home environment. In the past, Virginia courts have found the moral climate of a home to be unstable when there are issues such as adultery and perceived sexual misconduct in the home. Thus, in a case where fitness may be at issue, dads wishing to retain custody should make efforts to ensure that they are providing what Virginia law considers to be a stable and morally sound home environment for their child.

Custody Orders Can Be Modified or Terminated

Remember, custody orders, once set in place, can later be modified or terminated. The key to modifying or terminating a custody order is to present evidence to the family law court that the circumstances that initially factored into the court’s custody order have changed such that the court would reach a different determination today.

Get Legal Guidance on Your Custody Issues

Dads seeking custody should not try and go it alone in arguing in front of a judge on complex Virginia family law issues. At Kurylo Gold & Josey, PLC in Fredericksburg, we will guide you through all of your questions regarding child custody and help you work towards a favorable outcome. For a consultation with an experienced family law professional, call the firm today at (540) 642-1766.