We get a lot of questions about custody and visitation in Virginia. Does the court assume 50/50 here? Does the court prefer mom? No, the court definitely prefers dad, right? Is there a standard custody arrangement that the court orders? Like, what happens in these cases, anyway?
I hear you. It’s like most moms are just screaming, “MAKE IT MAKE SENSE!”
So, I’m going to try. To make it make sense, I mean. Though I can’t guarantee that your case will make sense to you (or even to me) later on, I do think that (1) though the court doesn’t always get it right, most judges, Guardians ad litems and attorneys are doing their best, and (2) that the ‘best interests of the child’ factors is where most analyses of custody and visitation cases needs to both start and end. So, with that, I will elaborate.
I don’t think that the court prefers moms over dads, or dads over moms.
I hear a lot of chatter on this topic. Most moms believe that the courts favor dads, and will give dads chance after chance after chance, even when they’ve proven that they can’t follow the rules. Most dads, on the other hand, believes that moms have an unfair advantage just by virtue of being moms.
In my experience, none of that is true, at least in Virginia. While there was a time, a long, long time ago, where dads won in custody cases, and then a time, more recently, where moms were usually preferred, that’s not the case today, and has not been the case for some time.
My impression, from the cases that I’ve handled and the cases that I’ve seen my coworkers handle, is that the court views an arrangement that allows a child to have the most interaction with both parents as being the arrangement that is in the child’s best interests.
In other words, the parenting plan that gives the child the most access to both mom and dad is going to be best for the child, and therefore the best possible result. After all, custody is determined based on the best interests of the child, and not the best interests of mom or the best interests of dad.
Does that mean that the court always awards 50/50?
No. It’s always going to be hard, in custody and visitation, to speak in such absolute terms – always or never. There is no always. There is no never. There’s only the facts, and what seems best – to the judge, who makes the ultimate decision – based on the child’s best interests and the evidence, witnesses, and testimony presented, up to and including the report issued by the Guardian ad litem.
In custody cases, in Virginia, there are a number of different considerations. For one thing, there’s legal custody, which refers to the right to make three types of decisions on behalf of the child: (1) non emergency medical care, (2) religious upbringing, and (3) education. Legal custody can be awarded solely to one parent, or jointly to both – and it’s usually awarded jointly, because the court views the right to weigh in on these all-important issues as central to actually being an involved parent.
There’s also physical custody, which refers to how (and where) the child spends her time. This is where most disputes really start. Physical custody can be awarded primarily (primary physical custody) to one parent (meaning that the non custodial parent, the parent who has the child less, has 89 or fewer days during the course of a calendar year), shared between both parents (meaning that each parent has more than 90 days, but not necessarily 182.5, which would be necessary for true 50/50), or split (meaning that a different custodial arrangement is awarded for each child, like in The Parent Trap).
Shared custody does not necessarily equal 50/50.
While it is probably fair to say that courts often like to start out at shared custody, that doesn’t mean that a pure 50/50 is assumed.
Shared custody, after all, is anything where both parents end up with more than 90 days. It does not mean that the time has to be completely evenly split. A lot of things can play into that determination, like the parent’s work schedules and general availability. It’s impossible to say whether shared custody would be ordered in your case, and, if so, whether it’d be a pure 50/50 arrangement or something lesser, without knowing a lot more details about your case and any issues presented.
We do see some pure 50/50 arrangements, both ordered by the court and as agreed between the parties.
But, remember: custody, visitation, and child support are modifiable based on a material change in circumstances.
Even if you wind up with shared custody today – and that’s not what you wanted – I would encourage you to think of custody and visitation as a long game. Often, what the parties start out doing is not what happens long-term. Once there has been a material change in circumstances, you can petition the court again to modify your arrangement.
At that point, I’d bring out anything new (as in, since the entry of the last order) that might impact the court’s decision. If, say, you have a right of first refusal, and you’re winding up watching the kids a TON during his parenting time, or he’s consistently showing up super late (or not showing up at all), those are going to be things that you want to document.
If he’s suffering from mental illness, addiction, substance abuse, or something else that might render him unfit, you’ll want to bring that information to light as well. If he’s not following the existing agreement or court order, you might want to raise those concerns – either in the hopes that you’ll get more ironclad language in a revised order or agreement, or that the court will use this behavior as justification for altering custody and visitation.
It can often be a very long game.
Is there a standard parenting plan that the court follows?
Typically, you won’t see too much ingenuity from the court. There’s too much room for the court to be accused of favoring one side or another, or of having something overturned on appeal. Generally speaking, the court will follow a couple templates – but that doesn’t mean that this is a given.
In litigated custody cases where shared custody is awarded, I’ve seen a lot of week on/week off and 4-3-3-4 arrangements. Depending on the work schedules involved, though, something else might be awarded.
I’ve even seen shared custody awarded in a relocation cases – a risk you should be aware of, if relocation is something that you’re considering. In one case I had, the judge gave mom custody during the school year, but gave dad 100% of the breaks from school. All the Christmases, all the Thanksgivings, all the Easters, and the entire summer – he got it all. I just saw that once, and I’m certainly not suggesting that’s a given, but just trying to point out that, in a unique set of circumstances, a somewhat unique arrangement might be ordered.
I’m so afraid I’m going to lose custody, especially after you said all this!
I know. I’m a mom, too. I get it. And, I think a big part of what’s so scary about all of this is the fact that you’re afraid you’re going to lose the ability to be the kind of mom that you want to be. If you only have half the time, how can you make all the magic and memories that you always dreamed of making?
But, still, I do feel like I need to point out that sharing custody 50/50, or sharing in any other arrangement that doesn’t amount to 50/50, isn’t viewed as the court as a ‘loss’. It isn’t a reflection that the court thinks you’re a bad mom. It doesn’t mean that you won’t have the chance to be the kind of mom that you want to be.
In fact, I hear a lot of stories where moms say the opposite; that 50/50 custody gave them a chance to be the best version of themselves. Because they have a chance to take care of the errands, the laundry, the work, the boring stuff, while the kids are gone, they feel like they can come in more like Disneyland dads. (You know the type: they don’t do the work but come in all fun and cool and totally undermine the mom’s hard work.)
Maybe it’s not right for your case. Maybe it is. Maybe you feel guilty either way. Well, let’s be real; you’ll probably always feel guilty, because I think all moms do, regardless of their personal situations. But 50/50, or shared custody, is not losing. Not by a long shot.
And maybe you want to go back to court and modify, and that’s fine. Maybe your goal is primary physical custody. It’s good to have goals. You should talk to an attorney about how to achieve them.
But maybe, also, you’ll settle into shared custody, and you’ll find it’s not terrible. Maybe you’ll find that you, and even your kids, are doing pretty well with it. At the end of the day, I think most moms would say that’s the goal: to have an arrangement where both they and their children can thrive.