Virginia Best Interests of the Child Factors in Custody Cases

Why These Factors Matter

When determining a child's best interests for custody or visitation, Virginia courts consider the ten factors in Va. Code § 20-124.3. Except for consent orders, the judge's oral or written explanation must state findings on the relevant factors. No single factor automatically wins or loses the case.

For nonparent petitioners, understanding these factors is especially important. Before the court weighs best interests, you must rebut the parental presumption by proving one of the recognized grounds: parental unfitness, a prior order of divestiture, voluntary relinquishment, abandonment, or special facts and circumstances that provide an extraordinary reason to place the child with a nonparent. You must also prove by clear and convincing evidence that the award would serve the child's best interests.

The Ten Factors

1. The age and physical and mental condition of the child. Younger children may need more physical care. A child with special medical or developmental needs may need a caregiver who can manage those needs. If you have been handling the child's medical appointments and therapies, this works in your favor.

2. The age and physical and mental condition of each parent. If a parent's condition affects their ability to provide safe care, evidence about that condition is relevant to this factor.

3. The relationship existing between each parent and each child. This is about the bond. Who does the child turn to when they are scared? Who helps with homework? Who tucks them in? The child's important extended-family relationships are also considered under factor 4.

4. The needs of the child. Beyond basic needs, the court looks at stability — consistent schooling, established friendships, medical care continuity. A child who has been in your home for two years and is settled in school has needs that are being met where they are.

5. The role each parent has played and will play in the child's upbringing. Past behavior predicts future involvement. If a parent has been absent while you have provided the child's daily care, that history may be relevant to the court's best-interest analysis.

6. The propensity of each parent to actively support the child's contact and relationship with the other parent. The statute also directs the court to consider whether a parent has unreasonably denied the other parent access or visitation. A grandparent who encourages the child's contact with a parent when safe to do so can show child-focused thinking.

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 about the child. This factor looks at demonstrated willingness to maintain the child's relationships and work through disagreements affecting the child.

8. The child's reasonable preference, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express one. There is no fixed age. The judge considers whether the child is mature enough to express a meaningful preference. For older children, this can carry significant weight. The child's preference is typically communicated through the Guardian ad Litem or an in-camera interview, not open courtroom testimony.

9. Any history of family abuse as defined in § 16.1-228, sexual abuse, child abuse, or an act of violence, force, or threat as defined in § 19.2-152.7:1. The ten-year limit applies to an act of violence, force, or threat. Police reports, CPS findings, and protective orders may be relevant evidence. If the court finds such a history or act, it may disregard factor 6.

10. Any other factors the court deems necessary and proper. This catch-all allows the judge to consider anything relevant that does not fit neatly into the first nine factors — the child's ties to a particular community, religious considerations, a proposed relocation, or any unique circumstances of the case. Relocation is not a separate factor in the statute.

How to Present Evidence on Each Factor

The factors are not a checklist to argue in the abstract. Each one requires concrete evidence:

• School records speak to factors 1, 4, and 5 — who enrolls the child, who attends conferences, who picks up report cards
• Medical records address factors 1, 2, and 5 — who schedules appointments, who brings the child, who manages prescriptions
• Photographs and daily life documentation show factor 3 — the relationship you have built with the child
• Witness testimony from teachers, doctors, counselors, and neighbors can address multiple factors at once
• Your own testimony about your daily routine with the child grounds everything in lived reality

What Judges Actually Look At

Judges see custody cases regularly. They are looking for the truth underneath the paperwork. A grandparent who has been quietly, consistently caring for a child — managing their school life, their health, their emotional needs — presents a compelling picture without needing dramatic testimony.

The strongest cases are the ones where the evidence tells a coherent story: this child has been in this home, with this caregiver, and their life is stable. Disrupting that stability would not be in their best interests.

Building Your Case

For a structured approach to organizing evidence around each of the ten factors, the Virginia Guardianship and Custody Court Process Guide includes a hearing evidence organizer and preparation checklist designed specifically for nonparent custody hearings.

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