An essential element of any child custody arrangement is visitation for the non-custodial parent. Under the law, the parent who does not have physical custody is presumed to have visitation rights. There are no recorded cases of a judge completely denying the right of visitation.
Ideally, visitation arrangements are worked out between the parents and ratified by the judge. If the parties cannot agree, the judge will determine visitation based on what would be in the best interests of the child under the following guidelines in listed Va. Code § 20-124.3:
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;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
While judges have never denied visitation rights, they do have the option of ordering supervised visitation if it is deemed necessary and in the best interests of the child.
Denial of visitation by the custodial parent is a violation of the custody order, and the non-custodial parent may petition the court to enforce it. On the other hand, failure to return the child at the designated time has more serious potential consequences. If the child is not returned within 48 hours, it may be considered an abduction. If the abducting parent stays in Virginia, it is a Class 1 misdemeanor, punishable by up to 12 months in jail and up to a $2,500 fine. If the abducting parent crosses state lines, it is a Class 6 felony, punishable by one to five years in imprisonment, or up to 12 months in jail and/or $2,500 fine.
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