Child Custody in Fairfax County, VA

Fairfax County Family Law · Child Custody

Child Custody in Fairfax County, Virginia: What Parents Need to Know

Of all the questions families bring me, custody is the one parents lose sleep over. I get it. So let me walk you through how custody actually works in Fairfax County, in plain language, so you know what really matters and what does not.

By Alisa Chunephisal, Esq. · Founding Partner, NOVA Legal Professionals

This article is one part of our larger guide. For the full picture, start with our cornerstone, Family Law in Fairfax County. Here, I will focus on custody alone.

The two parts of custody

Virginia recognizes two kinds of custody, and they are decided separately:

Legal custody is the right to make major decisions about a child, like medical care, education, and religion.
Physical custody is where the child actually lives, day to day.

Each can be sole or joint. Many Fairfax families end up with joint legal custody and primary physical custody to one parent, meaning both parents share big decisions while the child lives mainly with one. Joint physical custody, where the child splits time more evenly, is also common when both homes are nearby and both parents are involved.

The standard the court actually uses

Virginia courts decide custody based on one standard above all others: the best interests of the child. The law lists ten factors a judge must consider, including:

The child’s age, physical and mental condition, and developmental needs.
The relationship the child has with each parent.
Each parent’s ability to meet the child’s needs and to support the child’s relationship with the other parent.
The role each parent has played, and will play, in caring for the child.
The reasonable preference of the child, if old enough and mature enough to express one.
Any history of family abuse or sexual abuse.

The judge has to weigh every factor that applies, and no single factor is the deciding one. (Va. Code § 20-124.3)

What People Get Wrong

Two things I correct in almost every first meeting. There is no automatic preference for mothers in Virginia. And children do not simply “choose” at a certain age. A mature child’s preference is one factor, not the deciding one, and Virginia law does not set a magic age when a child gets to pick.

Where Fairfax custody cases are heard

Which court hears your case depends on the situation. If the parents are divorcing, custody is usually decided as part of the divorce in the Fairfax County Circuit Court. If the parents were never married, or the case is standalone, custody is usually heard in the Fairfax County Juvenile and Domestic Relations District Court, often called J&DR.

A Recent Change in Virginia Law

Under a 2026 update to Virginia law, a child’s custodian, not just a parent, can now file a petition for relief of care and custody in J&DR. This change matters most for grandparents and other relatives who are already raising a child and need legal recognition of that role.

Facing a custody decision in Fairfax County?

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Custody evaluations and outside experts

Some Fairfax cases need more than the parents’ testimony to sort out. A custody evaluation is when the court appoints a qualified mental health professional, often a psychologist, to interview the parents and child, observe how they interact, and make recommendations to the judge.

Under a 2026 update, both the circuit court and the district court can now order custody evaluations, and the Board of Psychology is studying how to make qualified evaluators more available for these cases. In Fairfax, courts can also appoint a Guardian Ad Litem, an attorney whose only job is to represent the child’s interests.

Parenting plans and schedules

A good parenting plan does more than divide weekends. It addresses school schedules, holidays, summer breaks, transportation between homes, decision-making, how parents will communicate, and how to handle changes as the child grows. The clearer your plan, the fewer fights you will have later. Read more on our child custody page and our child visitation page.

“Day one matters. The choices you make in the first thirty days of a separation often shape the next two years of your custody case. Get advice before you move, not after.”

Alisa Chunephisal, Esq. · Founding Partner

Alisa’s Practical Advice

In my experience, three early habits help Fairfax parents the most. First, behave as if a judge is watching everything you do, because in a contested case, one might be. Second, keep written records of pickups, drop-offs, missed visits, and big communications, since memory fades and texts last. Third, never badmouth the other parent in front of the child, because the law literally lists your willingness to support that relationship as a factor.

If you remember nothing else, remember those three.

Changing a custody order later

Custody orders are not set in stone. Either parent can ask the court to modify custody or visitation if there has been a material change in circumstances since the last order, and the change in the order would serve the child’s best interests. A move, a serious safety concern, or a major shift in the child’s needs can all qualify. (Va. Code § 20-124.2)

Authoritative References

Sources

Code of Virginia, § 20-124.2 and § 20-124.3. Custody and visitation determinations and the best-interest factors. law.lis.virginia.gov/vacode/title20
2026 Virginia General Assembly. SB206 / HB73 expanding standing for custodians to file J&DR petitions; HB768 authorizing custody evaluations in circuit and district courts. lis.virginia.gov
Fairfax County Juvenile and Domestic Relations District Court. Hears most custody matters. fairfaxcounty.gov/juveniledomestic
Fairfax County Circuit Court. Hears custody as part of divorce. fairfaxcounty.gov/circuit

Frequently Asked Questions

What is the difference between legal and physical custody in Virginia?

Legal custody is the right to make major decisions about a child, such as medical care, education, and religion. Physical custody is where the child actually lives day to day. Each can be sole or joint, and many Fairfax families end up with joint legal custody, meaning both parents share major decisions, and physical custody assigned to one parent as primary or shared between the two.

Does Virginia favor mothers in custody cases?

No. Virginia law does not give either parent an advantage based on gender. Courts decide custody based on the best interests of the child, weighing the statutory factors listed in Virginia Code Section 20-124.3. The court looks at the relationship each parent has with the child and each parent’s ability to meet the child’s needs, not at which parent is the mother and which is the father.

At what age can a child decide which parent to live with in Virginia?

There is no specific age in Virginia at which a child can decide. A child’s reasonable preference is one of the ten factors the court must consider, but only if the child is old enough and mature enough to express a meaningful preference. The judge weighs the preference alongside every other factor and decides based on the child’s best interests overall.

How is custody decided when parents were never married?

Custody between unmarried parents is usually decided in the Fairfax County Juvenile and Domestic Relations District Court, often called J&DR. Either parent can file a petition asking the court to set custody and visitation. The same legal standard applies as in divorce cases, the best interests of the child, using the ten factors listed in Virginia law.

How do I change a Virginia custody order?

To change a custody order in Virginia, you have to show two things. First, that there has been a material change in circumstances since the last order. Second, that changing the order would serve the child’s best interests. Common reasons include a parent’s move, a meaningful change in the child’s needs, or a safety concern. The request is filed in the same court that issued the original order.

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