If you’ve never been through it before, it’s hard to know what to ask for when it comes to custody and visitation. Probably you realize that your soon-to-be ex (husband, boyfriend, partner – whatever the label) will have at least some parenting time. But what will that look like? How can it be structured? What should you be considering when it comes time to put pencil to paper and actually structure a parenting plan?
Well, first thing’s first.
“We’ll just work it out,” is almost certainly not good enough. Think of your custody arrangement like the foundation of a house. If your coparenting relationship is going to be strong, then everyone – yes, your ex, too, maybe even especially him – is going to need to move forward confidently into the future, knowing exactly what to expect.
When parents don’t know what to expect – when we see arrangements, for example, that say the parties will have ‘reasonable and liberal’ parenting time, but mom is focusing on the word ‘liberal, and thinking she’ll have final veto power while dad is seeing the word ‘liberal,’ and thinking he’ll have 50/50 parenting time – it creates an opening for ongoing litigation. Modification after modification. Fighting. Instability.
In short, it’s not ideal.
I know – getting to an agreement is not easy. If it were, he might not be your soon-to-be ex. After all, you liked him enough, at one point, to have a child (or children) with him. The agreement is difficult, not easy, and it feels overwhelming to think about.
But the only way out is through, and the best way through is with a solid foundation that leaves everyone very clear what to expect in this uncharted territory.
So let’s discuss.
What are the different types of custody in Virginia?
In Virginia, the judge is supposed to consider ALL forms of custody equally, to include primary physical custody, shared physical custody, and split physical custody. Primary physical custody is an arrangement where the noncustodial parent has 89 or fewer days in a calendar year. Shared physical custody is an arrangement where the noncustodial parent has 90 or more days in a calendar year. Shared physical custody does not automatically assume 50/50 custody, but it can include 50/50 custody. Split physical custody is a custodial arrangement where there are different arrangements for different children. This is usually not something that a judge orders; it’s something the parents enter into because they believe it’s in their children’s best interests.
Legal custody – the right to make decisions on behalf of the children with respect to (1) non emergency medical care, (2) religious upbringing, and (3) education – is usually awarded jointly. Sole legal custody is rare.
Does Virginia start at 50/50?
No, not necessarily. The judge is supposed to consider all forms (shared, primary, and split) of physical custody equally. Custody and visitation decisions are made based on the ‘best interests of the child’ standard, as established by the statute.
There is no law in Virginia that mandates that 50/50 is the starting point or a presumptive standard, but you will see that one of the ten ‘best interests of the child’ factors is ensuring frequent and continuing contact with both parents.
We don’t necessarily start at 50/50, and certainly aren’t mandated to, but that doesn’t mean that judges don’t like it. They do. Most judges want to see both parents actively involved in their kids’ lives. But that doesn’t mean all custody arrangements have to look the same.
If you go to court and litigate, you’re likely to find that your custody arrangement is unimaginative. I see very few variations – sometimes, it’s every other weekend, two weeks in the summer, other times it’s week on/week off – and they often don’t include a lot of detail around holidays and other special events.
The bottom line? If you want a customized, tailored, detailed parenting plan, you will want to try to agree to something OUTSIDE of court. Because, let’s be honest, no one likes those barebones agreements with little to no guidance on how to handle issues, big or small, that come up. They create more problems, rather than resolving them. That’s the opposite of being helpful!
But what should you be considering?
Let’s talk about the custody split, shall we?
Primary Physical Custody – 89 days or less
Every other weekend/Two weeks in the summer/Alternating legal holidays
This is the old school, OG standard custody arrangement – and it’s becoming more and more rare. Though some parents still use this type of parenting plan by agreement, it’s less commonly awarded in court.
The legal holidays we use are Memorial Day, the Fourth of July, Thanksgiving, and Christmas – but you may want to expand this definition to include any days that warrant a long weekend from school. Additionally, rather than just, say, dividing Thanksgiving DAY and/or Christmas Day/Christmas Eve, you might want to account for the entire break from school, especially if your children are school aged. (Even if they’re not yet, you might want to specify that, once they become school aged, you’ll follow a school calendar in a particular way – just so there’s no extra reasons to go back to court and disrupt things.)
Every third weekend
This one is pretty self-explanatory; two weekends to the custodial parent, and every third weekend to the non-custodial parent. You could include vacation time and alternating holidays – or not – but the bulk of his parenting time would be on the weekends. This is by far one of the more restrictive parenting plans; it may be as part of a step up plan (for a previously disengaged or involved dad), or a long term plan where he’s not interested in carrying much responsibility.
First, Third, and Fifth Weekends/Second, Fourth, and Fifth Weekends
These arrangements are essentially two sides of the same coin, it just depends on which weekends you select to begin alternating. For the non-custodial parent (or the lesser custodial parent, if you want to say it gently so you don’t make him so cranky he won’t sign the agreement), in events where there is a fifth weekend, he gets a bonus weekend. In most years, just for your information, there are 4-5 months that include a fifth weekend.
Shared Physical Custody
You enter shared physical custody territory when your child’s father has 90 or more days in the calendar year. Though a discussion of costs and child support is beyond the scope of this article, you should know that – once he hits 90 days – child support starts to be calculated on a sliding scale depending on how much time each parent spends with the children.
It takes very little to get into shared custody territory. As you’ll see below, even a 70/30 split – meaning you have the children 70% of the time – is considered shared custody by Virginia’s standards.
70/30 arrangements (non custodial parent has about 110 days)
5-2 Split/Every weekend
A 5-2 split is essentially – usually – an every weekend arrangement, which bumps this up solidly into shared physical custody territory. You could, theoretically, do a 5-2 split that wasn’t Monday through Friday and then Saturday and Sunday, but that split is the most common one that we see.
The main disadvantage with this is, for the custodial parent, she ends up feeling like she has to do all of the “business” of parenting without any of the “fun” that can happen on weekends. She’s doing laundry, lunches, school work, the school pick up and drop offs, and more, all while he gets to just pick up on the weekend when there are much fewer responsibilities.
Every third day
He could also have one day every three days – so, if you started the rotation on a Monday, he’d have Wednesday, Saturday, Tuesday, and Friday over a two week period before you started back up with a Monday.
This is a lot of calculations – when is the third day, again? – and might feel a bit unpredictable. It’s not common, but it’s a possibility, if you wanted frequent contact (but not for too long at any stretch).
Keep in mind, too, that – for custody and visitation purposes – a “day” is a 24 hour period. That may seem obvious, but how it matters here is that if he just takes the “day,” and returns the kids at home for the night to sleep, at BEST he could get credit for 12 hours. He wouldn’t get credit for an entire day without an overnight, so if this doesn’t include overnights it’s a very different custodial arrangement.
Every Third Week
You don’t have to do every other week, but maybe he still wants a whole week here and there. He can have a weekend AND the opportunity – yes, we’ll brand it that way – to take responsibility for the day-to-day caregiving associated with Monday through Friday parenting. School, laundry, groceries, extracurriculars – he can have the full range of coparenting experience by having them for an entire week at one stretch, but without alternating every other week.
60/40 arrangements (non-custodial parent has about 146 days)
4-3 split
You could split each week of seven days into four with one parent and three with the other. Depending on how you do it, you could make it so that you split the weekend (one parent gets Sunday morning through Wednesday morning, and the other gets Wednesday morning through Friday morning) or give the weekends entirely to one parent or the other.
8-6 split
You could also split days 8 to 6 over a two week period. So, it could be Sunday to Monday, and then Monday to Sunday. You could always start your rotation whenever you wanted – start on a Wednesday, for whatever it’s worth – but it would always finish up after two weeks and the kids would start back where they left off. It’s close to a 50/50 split, but not quite. After all, sometimes it’s just down to getting as many days as you can and giving him the *feeling* of having 50/50, but without quite giving him 50/50.
Every extended weekend/Summer vacation
Some custodial arrangements include every extended weekend and every break from school. That can include, or not include, the summer vacation, but obviously exactly how much time is intended to be shared here will impact exactly where this custodial relationship falls on the continuum of parenting time.
I often see things like this – all the long weekends, all the long school breaks, and/or the entire summer – when the parents don’t live close to each other. It’s always a question to consider when it comes to relocation. Is the juice worth the squeeze? You potentially run into the same issue here as with the every weekend arrangements; does that mean you end up doing all the business side of parenting during the school year, and he gets all the vacations and fun?
Furthermore, as the kids age, how will they like this? I see this work well when children are young, but, as they age, they tend to want to stay close to friends, sports, and even work opportunities, making these arrangements more challenging. If your child’s father is going to force it and your kids are going to be wildly unhappy – not always something we can predict, but always a consideration – it might create additional challenges.
50/50 arrangements (roughly 182.5 days each)
Keep in mind that many truly 50/50 arrangements require some geographic proximity, especially if you’re going to switch the kids between homes during the week. You’ll both have to – at some point, even if you’ve got babies now – navigate the school schedules, pick up and drop off, bus schedules, and other activities. If you live close enough but too far to really make it work, that’s something you should consider. Remember, too, that even when you meet in the middle, the kids have to do the entire drive there and back each time.
Every other week
This is pretty common and it minimizes mid-week disruptions. But, for many newly separated coparents, spending an entire week away from your child might feel impossible. I always mention to clients that, really, the custodial arrangement is supposed to be in the best interests of the children, not of the parents, but there’s no question that both you and your child’s father matter in this massive logistical burden, too. What works for YOUR family? Your work schedules?
If you schedule vacation, keep in mind that this can be used to add a consecutive week – giving the other parent three weeks, if he uses it to have his two weeks on either side of a week that would otherwise have been yours. Do you want the parenting plan to operate this way, or do you want to specifically state that you’ll each take your vacation during your own weeks, so as not to step on the other parent’s toes at all? You could do this, but then you’d never have a more than one week vacation.
2-2-3 Split / 2-2-5-5 split /4-3-3-4 split
Parents tend to like these splits because they see the kids frequently and are able to prioritize both the mid-week care that parenting requires and a reasonable amount of time for weekends and unstructured time, too.
Is it too much on the kids to shuffle back and forth all the time? You – and your child’s father – are the only ones who can decide this. It’s a lot of back and forth and, if your ex is high conflict, a lot of opportunities for more conflict. Pick up and drop offs, in particular, can be fraught, at least until the kids go to school (and, presumably, one of you can drop the kids off and the other can pick them up). If it’s a difficult situation between you and your ex, you’ll want to minimize interaction as much as possible.
But – of course – that’s not all. There are an infinite number of possibilities but, perhaps even more importantly, there are other considerations for custody and visitation arrangements. Stay tuned for part two of this article for other considerations related to parenting plans.