(a) Alex is not correct in his belief that Virginia recogonizes a presumption in favor of the mother is awarding custody.

Virginia does not recognize a presumtion in favor of the mother in awarding custody. Virginia does not recognize a presumption in favor of either parent based on the parent's gender in awarding custody.

(b) Arguments Beth should make in support of her petition for primary physical custody of Phil.

The controlling standard in Virginia for awarding custody of a child is the best interests of the child. Various factors are considered in evalutating the best interests of the child.

1. The age and physical and mental condition of the Phil.
Phil is 11 years old. He is an excellent student and excells at sports. Beth should argue that it would not be in his best interests to disrupt his life as he is currently excelling by moving him to a new city and a new school, away from all of the people that he has such good relationships with.

2. The age and physical and mental condition of each parent.
Phil is a recovering alcoholic. Though he has been through treatment and been sober for four years, the potential for relapse is an argument is Beth's favor that she should make, that if he were to relapse in would not be in Phil's best interests for Alex to have primary physical custody of him. This argument is not as strong since Alex is four years sober, but an argument in Beth's favor nonetheless.

3. Relationship existing between each child and each parent
Phil has a close relationship with both of his parents, so that does not tip the balance either way. Beth could argue that since he has a good relationship with both, that should be maintained as much as possible, and since Alex seems to have more animus towards Beth, and having a new live-in girlfiend, Alex having primary physical custody fo Phil could be detrimental to his relationship with Beth. Also, since Phil and Alex like to hike together, Phil would have ample opportunity to maintain his good relationship with his father by visiting him in Roanake and hiking with him on the weekends.

4. Reasonable preference of the child.
Phil does not seem to have strong preferences either way, since he said that he misses his mom and his friends, but is "OK" living with Alex and Maria. Phil is 11 years old, and while his preference is not going to be controlling, should be given some weight, but evaluated in the complete context of the situation. Beth should argue that this vague statement demonstrates a preference to be back with his mom in his old hometown, and that "OK" is just a child's way of not wanting to upset his father, whom he has a close relationship with, while expressing that the change has made him miss his mom and his friends, whom he would prefer not to be separated from. She should argue that it would not be in his best interests to take Phil away from his childhood home, his school district, and all of his friends, when he could stay in his school and with all of his friends if his mother has primary physical custody.

(c) Arguments that Alex should make in support of his desire to maintain primary physical custody of Phil.

1. Physical and mental condition of the child.
Alex should argue that because Phil is an excellent student and excellent at sports, he is well equipped to handle the move to a new school and make new friends on the sports teams.

2. Physical and mental condition of the parents.
Alex first should argue that he is four years sober and that his alcoholism is not a problem that will affect Phil in any way, since Beth is likely to bring it up. He should then argue that because Beth's car accident has left her temprorarily disabled, she is not able to take care of Phil as well as he can. He should also probably argue that since Phil is so active he is better able to accomodate and help him with those activities since Beth is temporarily disabled.

3. Relationship between each parent and the child.
Again, Phil has a good close relationship with both parents, so neither has a super strong argument in support here. Alex should probably argue that having Phil primarily living away from him and rooted in his old life would make him less likely to maintain strong ties with his father in his father's new home, where if he lives with his father there is still plenty connecting him back to his mother and his hometown, beyond just his mother.

4. Reasonable preferences of the child.
Alex should argue that Phil's statement that he is "OK" living with him and Maria is an affirmative statement of his preference for the arrangement, and that at 11 years old Phil's preference should be given a substantial amount of weight.

      (a) Alex is NOT correct in his belief that Virginia recognizes a presumption in favor of the mother in custody cases. While it is true that in days gone by Virginia and many other states presumed that young children would be better off with the mother, that presumption no longer holds. The statutory factors will be applied neutrally to both parents.

      The guiding test for courts in custody cases is the “best interests of the child” test. This, at bottom, is the goal of the statutory factors enumerated in Va. Code sec. 20-124.3. This will be the touchstone of every argument Beth makes

      CHILD’S NEEDS

      Beth will argue that, at 11 years old, Phil is about to enter into the middle school and high school years. These are the years where children meet many of the friends they will have the rest of their lives. It is a vulnerable time, where children go through puberty and other hormonal changes. It is also a deeply impressionable time, where many of the habits and associations that the child will make and have for the rest of their lives are formed. These factors favor Phil staying in the same home and school.

      Also, it will be exceedingly important for proper relationship modeling. At 11 years old, the result of living with, watching, and observing an unmarried couple living together could create a warped sense of what creates a stable home. Furthermore, Phil is at an age where learning teamwork and the virtues of physical activity are paramount. His continued involvement with baseball and track are essential to his development; having coaches to emulate can make all the difference in a child’s life. Because Phil’s developmental needs support custody for Beth and remaining at home, granting Beth custody will serve Phil’s best interests.

      PARENTS’ CONDITION

      Beth will argue that Alex’s alcoholism is a red flag that the court should weigh heavily. She will embellish any and every instance where Alex’s alcohol consumption made an impact on Phil or his relationship with Phil. She will note that, while four years of sobriety is admirable, the demons of addiction come back fast and hard.

      Beth could also argue that Alex’s behavior--effectively abandoning his family--after Beth’s attempt at honesty and reconciliation are also factors at play. Having recriminated himself by also committing adultery, to then leave her and Phil instead of trying to work things out as Beth wanted to does not support Alex being granted custody. Alex, let the court not forget, confronted Beth’s boss and lover and cost her her job. This sort of erratic, ill-advised behavior is troublesome, and reminds Beth a lot of Alex’s drinking days.

      RELATIONSHIP WITH PARENT

      Beth will speak to the quality of her relationship with Phil, highlighting shared activities and confidences. As evidenced by Beth’s aversion to Phil living with an unmarried couple, Beth can speak about how Phil’s close affiliation with Church is something they share. She will emphasize how loving their relationship is, how much time they spend together.

      REASONABLE PREFERENCE OF CHILD

      Beth will argue that Phil’s position that things are “OK” living with Alex and Maria is kid speak for “get me out of here.” Phil lived his whole life in the same house; his grandparents are nearby. His baseball and track teams are here. Despite the fact that the facts do not state clearly that Phil has articulated a preference, Phil stated that he misses his mother and friends. At 11 years old, his preferences should matter a great deal. The preponderance of the facts indicate that Phil would prefer to stay put with his mother, Beth.

      (c) As with Beth, Alex’s arguments will center around the “best interests of the child” test.

      CHILD’S NEEDS

      Alex will argue that, at 11 years old, Phil needs a male role model in his life. Alex will need an adult male to guide him through the changes going on in his life and in his body. He will counter Beth’s points by saying that Phil can easily get involved in sports and church at his new school and in his new community. As for the fact that he and Maria are unmarried, Alex will retort that 40% of children are born out of wedlock today, and it is anachronistic to hold it against him that he is not married to Maria.

      PARENTS’ CONDITION

      Alex will first address the elephant in the room. He will emphasize that four years of sobriety is an eternity. He will further state that continuing treatment is a priority for him, that the specter of addiction is never gone.

      As for Beth’s condition, Alex will note that Beth had an extramarital affair with her boss. While Beth will have a recrimination defense against the adultery charge, Alex will point out that having an affair with your boss is much more reckless than with a lay person. Indeed, the result was that Beth lost her job as a result. Alex will not fail to note that Beth was so distraught after losing her job for cheating on her husband with her boss that she drove recklessly and crashed her car. Now, she won’t be able to work for at least a year. Thus, Beth’s mental and physical condition do not support her receiving primary custody.

      RELATIONSHIP WITH PARENT

      Alex will emphasize how close he and Phil are. They go hiking every weekend.

      PREFERENCES OF CHILD

      Alex will show how happy Phil is at his new home. Alex will attempt to interpret Phil’s assessment that living with him is “OK” as glowing praise and acceptance. Alex will emphasize that it is totally normal for Phil to miss his mother and friends, but that the best place for him to stay is with Alex.