In Virginia custody disputes, courts must evaluate a set of statutory “best-interests” factors under Virginia Code § 20-124.3 to determine custody arrangements. Among these, Factor 9 is critical: it mandates that if the court finds any 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 Virginia Code § 19.2-152.7:1 that occurred within the 10 years prior to the date the custody petition was filed. If the court finds such history or act, the court may disregard Factor 6 – the parent’s willingness to facilitate the child’s relationship with the other parent.
What qualifies under these provisions?
Family abuse (Virginia Code § 16.1-228)
Virginia defines “family abuse” broadly to include any act involving violence, force, or threat that results in bodily injury or places a person in reasonable fear of death, sexual assault, or bodily inury. It encompasses assault, stalking, sexual offenses, and similar acts committed against spouses, former spouses, parents, children, or other household members.
Sexual abuse
Includes acts such as rape, molestation, or exploitation of a child. This including serious misconduct that inherently undermines a claim to parental fitness.
Child abuse (Virginia Code § 16.1-228)
This is physical or mental injury (or risk thereof) inflicted, threatened, or allowed by a caregiver. It includes neglect, abandonment, or exploitation.
Act of violence, force, or threat (Virginia Code § 19.2-152.7:1)
It is defined to include any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. It includes forceful detention, stalking, criminal sexual assault, or criminal offenses that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.
To be considered under this factor, the alleged abuse must have occurred within the 10 years prior to the filing of the child custody petition.
Disregarding Factor 6 as it relates to the offending parent
Factor 6 of Virginia Code § 20-124.3 assesses each parent’s willingness and ability to encourage the child’s relationship with the other parent. If there is a relevant history of abuse under Factor 9, the court may, but is not required to, discount Factor 6 entirely as it relates to the offending parent’s request for custody.
This grants the court flexibility to override parental cooperation in favor of protecting the child from an unsafe individual.
Why this matters
This statutory rule protects children by recognizing that a parent with recent serious misconduct poses risks that may outweigh their professed willingness to facilitate co-parenting. It acts as a safeguard ensuring that abusive or violent behavior doesn’t go unheeded when deciding custody.
Practical Considerations for Parents
If allegations arise under any of these categories, affected parents should anticipate an investigation and a potential impact on their custodial rights.
Demonstrating rehabilitation, participation in therapy or anger-management programs, and maintaining a clean record can help mitigate concerns, though courts retain discretion.
Legal counsel can present for evidence of change over time, character witnesses, and third-party evaluations to balance the risk argued by the other parent.
In Summary
Virginia’s Factor 9 underscores emphasis on child safety: any proven recent history of abuse or threat – be it family, sexual, or otherwise violent – can impact a court’s ruling on custody and override the cooperative parenting standard generally expected in Factor 6. The aim is simple: place the child’s welfare above parental preferences, ensuring custody outcomes reflect both the current risk and best interests of the child.
At Stiles Ewing Powers, we understand that child custody matters can be complex and emotionally charged. Our experienced attorneys are here to help you navigate the legal process and advocate for a custody arrangement that serves the best interests of your child. Contact us today to schedule a consultation.
Disclaimer: The information provided in this blog post is for general informational purposes only and does not constitute legal advice. The specific circumstances of your case may differ, and we encourage you to consult with a qualified attorney to discuss your individual legal situation. This blog does not create an attorney-client relationship