Virginia's 10 Best Interests Factors: Code § 20-124.3 Explained

There is one test for custody in Virginia: the best interests of the child. Code § 20-124.3 sets out ten factors the court is required to consider in applying it, in custody and visitation cases and in pendente lite orders under § 20-103.

No factor decides a case by itself, and the statute assigns no weights. But the judge must state the basis for the decision, and in any case other than a consent order that communication has to set out the findings on the relevant factors. That obligation is why organizing your evidence around these ten headings — rather than around a chronological account of the marriage — changes how persuasive your case is.

Factor 1 — The child’s age and physical and mental condition

With due consideration to the child’s changing developmental needs. A schedule that works for a nursing infant does not work for a fourteen-year-old with travel soccer, and courts know it. If your child has a diagnosis, a therapy schedule, an IEP, or a medical condition requiring consistency, this is where it lands.

Factor 2 — Each parent’s age and physical and mental condition

This cuts both ways and it is frequently misused. A mental health diagnosis is not disqualifying. What matters is whether the condition affects the ability to care for the child. Raising a parent’s treated depression as an attack usually damages the accusing parent’s credibility more than the target’s.

Factor 3 — The existing relationship between each parent and each child

With consideration of positive involvement in the child’s life and the ability to accurately assess and meet the child’s emotional, intellectual, and physical needs.

Note “accurately assess.” Courts distinguish between a parent who loves a child and a parent who knows the child — who the pediatrician is, what the reading level is, which friend the child fell out with last month. Judges test this, sometimes directly.

Factor 4 — The child’s needs, including other important relationships

Siblings, peers, and extended family members are named in the statute. This is the factor that makes separating siblings difficult, and the one that gives a grandparent who has been a daily presence some purchase in the analysis.

Factor 5 — The role each parent has played and will play

Past caregiving and future intent. This is one of the two most consequential factors in practice. The parent who handled doctor appointments, homework, and bedtime for eight years arrives with an advantage that is hard to overcome with a stated intention to be more involved going forward.

Factor 6 — Each parent’s propensity to support the child’s contact with the other parent

Including whether each parent is willing and able to maintain a close relationship with the child, and whether each is willing and able to cooperate in and resolve disputes about the child.

This is the other decisive factor, and the one most often lost by the parent who is otherwise winning. A parent who disparages the other in front of the child, obstructs phone contact, or treats every exchange as a negotiation is demonstrating a failure under factor 6 in real time. Judges see it in the testimony itself.

Factor 7 — Relative willingness and demonstrated ability to cooperate

Closely related to factor 6, and the word to notice is “demonstrated.” Assertions do not satisfy this. A record of accommodating schedule changes, communicating about medical decisions, and resolving disagreements without court intervention does.

Factor 8 — The child’s reasonable preference

If the court deems the child to be of reasonable intelligence, understanding, age, and experience to express a preference.

There is no age at which a child chooses in Virginia. That belief is the most persistent misconception in Virginia custody practice. A mature sixteen-year-old’s preference carries real weight; it is still one factor among ten, and a court that suspects the preference was coached will discount it entirely. A child’s preference may be taken in an in camera interview under § 20-124.2 rather than open testimony.

Factor 9 — Any history of abuse or violence

As amended, this covers a history of (i) family abuse as defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 occurring no earlier than ten years before the petition was filed.

The consequence is significant: if the court finds such a history or act, it may disregard factor 6. A parent who is reluctant to facilitate contact with an abuser is not penalized for it. Many older summaries of this statute — including pages currently published by Virginia firms — omit the acts-of-violence prong and the ten-year window, which were added by 2020 Acts cc. 1074 and 1075.

Factor 10 — Any other factors the court deems necessary and proper

The catch-all. This is where the particulars of your family live: relocation plans, work schedules, a new partner in the home, stability of housing, distance between the parents’ residences.

What this means for how you prepare

Two practical consequences follow from the structure of the statute.

First, the court must address the relevant factors in its decision. Giving the judge evidence organized by factor makes it easier to rule in your favor and harder to rule against you without explanation.

Second, factors 5, 6, and 7 are where most contested cases are actually won and lost. Documented caregiving history and demonstrated cooperation outweigh almost everything else a parent can offer. A larger house does not.