Child Custody

In custody and visitation cases, one concern often expressed by clients is the worry that courts have a belief that children are best cared for by one parent over the other – most often the mother.  Fathers especially have a fear that when pursuing custody/visitation they are already a step behind simply because they are the father.

Recently, I came across an article by Leslie Spoltore of Fox Rothchild, LLP which talked about the same concern of gender bias in custody cases that take place in Delaware.  Referring to Delaware law, she identified the prohibition against gender based presumptions in Delaware custody cases.

Virginia Law:  No Presumption or Inference in Favor of Mother or Father in Custody Cases

Just like Delaware law, Virginia law prohibits gender based presumptions in custody and visitation cases.  In other words, just because you are male or female does not mean that you are automatically at a disadvantage.  The prohibition appears in Virginia Code § 20-124.2(B) which states:

In determining custody, the court shall give primary consideration to the best interests of the child.  The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children.  As between parents, there shall be no presumption or inference of law in favor or either.

The significance of having law that prohibits a presumption or inference in favor of a party based whether the person is father or mother is that decisions cannot be based on this factor.  In other words, the court cannot give someone custody based on the fact that that person is mother or father.

Now you may say that even though the law prohibits gender bias in decisions, it could still exist in the courtroom.  That is true.  The one thing the law cannot do is completely safeguard from individual bias.  Still, whether or not bias exists in the courts is speculative and is not something one can control.  Your focus should be on building a strong case; putting together sufficient high quality evidence to support your position, rather than expending energy worrying about something completely outside of your control.