Custody and visitation are always major hot button issues in divorce and custody cases, especially because there are so few guarantees. The whole ‘best interests of the child’ standard means that there’s not a standard custody and visitation arrangement ordered; it’s a subjective, not an objective, process, which means that a variety of different arrangements could potentially be ordered if a case were to go in front of a judge for a decision.
Under the new rules, judges have to consider all forms of custody equally, but it doesn’t mean that there’s a presumption in favor of any specific type of custody.
So, what does that mean? All forms of custody have to be equally considered? I think that leads logically to the next question:
What are the forms of custody in Virginia?
I’ve talked before about the vocabulary of custody, and that’s back where we are today. It’s important to understand the different forms of custody, and what options are on the table for Virginia family and circuit court judges.
In a primary physical custodial situation, the non-custodial parent (the parent who has the child less) has 89 or fewer days in a calendar year.
In a shared physical custodial situation, the non-custodial parent has 90 or more days in a calendar year.
Note that this is 90 OR MORE, meaning that it could be anything between 90 and 182.5. Shared physical custody does not guarantee 50/50 custody, but instead includes all arrangements that fall within this sliding scale. It could mean 50/50 custody, but it doesn’t automatically mean that.
Split physical custody
In a split physical custody situation, the parents divide up the children, like in The Parent Trap. It doesn’t necessarily mean it’s a blind division, like in the movie, or that the children don’t know (or one parent doesn’t see the other child). The movie is highly dramatized, but it’s the most accessible example that I know of.
Typically, this is not a custodial arrangement that is ordered by the court; it’s one that is agreed to by the parents for specific reasons. (And not, like in the movie, just so the parents don’t have to see each other.)
Do Virginia family and circuit court judges order a lot of 50/50 custody?
A lot of people, in my opinion, struggle to see the difference between shared and 50/50 custody. But a shared custody situation where a dad has 90 days is a very, very different one than if the parties split the year at 182.5 days. Surely you can see that – there’s a range of 25%, more or less, depending on the exact parenting schedule.
It’s hard to say what “normally” happens in these cases, because, again, the whole best interests of the child thing means that custody and visitation decisions are inherently at least somewhat subjective.
What is fair to say, I think, is that, if your custody case is decided by a judge, you’re less likely to have a fully customized custody and visitation schedule. Out of necessity, due to limited time and resources, judges tend to award fairly standard parenting schedules. I see a lot of every other weekend, or week on/week off schedules. Not because judges love week on/week off, or don’t see the problems associated with it (especially for school aged children) but because it’s more or less easy to just order, without hearing additional evidence about what kind of schedule the parties would prefer.
Not only that, but once a judge starts awarding custom schedules, it empowers parties to make arguments that a judge didn’t like them or applied the facts prejudicially – opening the judge open to reversal on appeal.
Do judges prefer 50/50 custody? Maybe, but not necessarily. What I think is true is that judges don’t have time or expertise to create fully customized, unique schedules for parenting time based on the evidence in each and every case.
Want customizability? Have a unique schedule or set of needs? It may be worth trying to work with your child’s father to come up with an agreed-upon parenting plan.
Is it easy? No! It’s never easy, especially not where custody and visitation are concerned. But, just like separation agreements in Virginia divorce cases, coming up with a custody agreement gives you a whole lot more control over how things will be ordered. Not because judges don’t care or aren’t trying to do a good job, but because there simply aren’t enough judicial resources for a judge to do this as a practical matter.
We can’t reach an agreement and we’ll have to go to court. I hate the idea of 50/50, and week on/week off. What can I do?
I agree; 50/50, or week on/week off (not that week on/week off is the only way to do a 50/50 custody division, because it’s not – it’s just a fairly common one) has its disadvantages.
The thing to remember here is that custody and visitation (and child support, for that matter) are always modifiable based on a material change in circumstances. So, even if you go to court because you can’t reach an agreement and you don’t like what the judge orders, you can always petition to modify later.
I know, I know, it’s not ideal. And it’s not like it’s a guarantee that the judge will order 50/50 custody, anyway – I’m only speaking to what I imagine is your worst case scenario here. What the judge will order is based on the Guardian ad litem’s report, if a GAL has been appointed, as well as all the facts and evidence introduced at trial. It may or may not be 50/50 custody. But, if it is, you can always petition to modify later.
Especially if the children aren’t doing well, or your child’s father isn’t doing well. There are a lot of things that can happen after a custody order is entered, and best interests isn’t a fixed thing; it’s changeable, as the children grow and age and different things become appropriate or necessary. If they’re suffering under the 50/50 arrangement, that would certainly be something to bring up to the judge later.
Take your time, gather your evidence, and be prepared to go to court to modify later. Again, 50/50 is not a guarantee – nothing is guaranteed in custody cases – but it could happen. The good news is that one bad decision on the judge’s part doesn’t mean that your kids are stuck in a parenting plan that doesn’t work for their needs. In fact, that’s exactly what best interests is all about!
Things can change over time, and a material change in circumstances will allow you to petition the court to modify custody, visitation, and child support, as necessary.
Of course, none of this takes into account your particular, unique situation. You may want to talk one-on-one with an attorney, or request a copy of one of our books or free reports. Keep in mind that this is all very fact specific, so of course anything related to his work schedule (or deployment!), substance abuse, addiction, abuse, or any other hot button issue is going to relate to the custody order that is entered in your case.
I’m not saying that Virginia courts always get it right, but you do bear some responsibility here for effectively presenting the evidence and making sure to make your case. In the event that you and your child’s father can’t reach an agreement regarding custody and visitation, litigation may be necessary. It’s okay. It happens. And, again – it’s modifiable. (Not to mention appealable!)
Document, document, document. Keep a log. Save text messages. Make sure you’re paying attention, and cataloguing your evidence for future use later.
And feel free to give us a call at 757-425-5200 to set up a confidential consultation to discuss your options, whether 50/50 custody might be awarded in your case, and what you can do to help protect yourself and your children.