By Melannie Dino

§ 20-124.2B of the 1950 Code of Virginia, as amended, provides that in determining custody, the Court shall give “primary consideration to the best interests of the child. The court shall consider and may award joint legal, joint physical or sole custody, and there shall be no presumption in favor of any form of custody.”

In determining the best interests of the child, the Court will look at the enumerated factors set forth in § 20-124.3 of the 1950 Code of Virginia, as amended, including:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. 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 the other parent access to or visitation with the child;
7. 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 regarding matters  affecting the child;
8. 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;  and
9. Any history of family abuse and 10 such other factors as the Court deems necessary and proper.

For a more detailed review of these factor, check out one of our prior blog posts.

Legal custody is the decision making for important legal decisions for the children.  It typically refers to the decisions made with regard to the children’s medical treatment, education, and religion.  In determining whether both parents should make these decisions jointly or whether one parent should have sole legal custody and/or the final decision making-authority, Factors 1, 3, 4, 5, and 7 are particularly important.

Let’s say for example, that parents of a child are already divorced and have joint legal custody of there child.  The child is subsequently diagnosed with ADHD.  The child’s physician and our school personnel may be making recommendations.  The parents may not agree on a recommended treatment program for the child or whether a particular medication should be administered to the child.

What happens if the parties have joint legal custody to make that decision, but cannot agree? To make a decision as to the appropriate medical treatment for the child, in particular, Factors 1, 3, 4,5, and 7, at a minimum would have to be considered by the Court.  The child’s age and medical condition as well as the child’s need for the treatment will be at the forefront.  The relationship each parent has with the child and the ability to accurately assess the child’s need for treatment as well as the role each parent has played and will play in assessing and meeting the child’s medical needs will also need to be measured to determine how to divide up the decision-making authority.  Further the ability of each parent to work with the other in resolving disputes will be important.

The Court will not likely order the administering of the medication but if the Court determines that the parents are not able to make a joint decision that the Court believes is in the best interest of the child after weighing the factors, the Court will  likely order sole legal custody to one parent to make the decision or give the parent that the Court determines is most likely to make the legal decision that is in line with the child’s best interest the legal decision making authority over that particular medical decision.

If you are unable to agree with your ex-spouse or a separated parent about a major legal decision surrounding your child, you should consult with an attorney about your legal options.

Here at Steven Krieger Law, PLLC, we have experienced family law practitioners who are able to work with you to ensure the best interests of your children are being met.  Please contact us today and schedule a consultation.