Clever Provisions to Consider in Your Virginia Custody and Visitation Agreement

Posted on Feb 1, 2021 by Katie Carter


As you can probably imagine, in a coparenting relationship, all sorts of issues come up. Some of them are just related to the myriad challenges parents face in raising children, and the inherent differences between partners (even loving, respectful, happy partners!).
When the coparenting relationship isn’t very good to begin with, all sorts of other issues can (and do) come up.

Lots of women want general, vague agreements in place that give them most of the parenting time, and require that dad ask for time when/if he wants it. Though I can understand, for a lot of reasons – the impression of the control it gives mom over the time that each parent exercises with the child, the fact that it may be easier to get this kind of an agreement in place rather than specifically bringing up and resolving every other issues related to custody and visitation – I think that vague parenting plans really set people up for failure.

For a lot of reasons, but primarily because a vague parenting plan doesn’t address the specific concerns that might come up. And, let’s face it, YOU HAVE CONCERNS! So, it’s better to get them out in the open, and come up with a specific plan for addressing them – so that everyone knows what to expect.

A schedule is better, too, for the same reasons. It’s not a good idea to leave it up to him asking for permission and you either granting or denying the request; in my opinion, this puts you in a really vulnerable position if he goes to court and argues that you’re unreasonably withholding access to the children.

It’s always a good idea, when you craft a custody agreement, to spend some time thinking about the concerns you have and how you might be able to address them so that things flow smoothly.

If you and your child’s father are not of one mind – and needing to hash out a custody agreement is a good indicator that, at least at this point, you are not of one mind – you need to spend time addressing your particular challenges and issues, and coming up with ways to work past them.

Now, in my years of experience and in seeing tons of custody agreements, I’ve indicated a couple of sample provisions here that can be employed in your custody agreement, if necessary. This isn’t designed to be an exhaustive list but just to give you some ideas for things you can include.

It’s always worth mentioning that a custody agreement can be as unique to you as the situation warrants. You know yourself, your kids, and your child’s father best, so you’re probably ideally situated to come up with solutions for your own problems. Right?

So definitely worth your while to do a little soul searching to consider what provisions you might like to include, or what issues you might run into.

1. Right of first refusal

A right of first refusal is a pretty common provision. It’s pretty basic, and it says that, if one parent is unable to care for the children during their parenting time for a specific amount of time (like, an amount of time exceeding 4 hours or 6 hours or 8 hours or whatever increment of time that you can agree on) they have to offer the children to the other parent BEFORE engaging a third party for childcare.

A big concern we hear is that dad only wants parenting time to lower the child support, but then he plans not to exercise it – by pawning them off on his parents, for example. While it may not be unreasonable, in certain circumstances, for the paternal grandparents to spend some time with the kids, that should not happen during a big chunk of the time dad has claimed for himself.

Remember, of course, that this provision is mutual, and would apply to you as well, if you planned to leave the children in the care of a babysitter or your own parents. You may also want to include a provision that excepts time where you’re sending the kids to their regular daycare during the workweek; certainly, it would be restrictive to have to reach out to each other each week just to say that you’re offering the time where you’d both be at work anyway.

2. Drug/alcohol prohibition

If you’re worried about him consuming drugs or alcohol during his parenting time, you can include a provision that says that he won’t do so while the children are in his care or for 24 hours prior to a visit.

Again, something like that is almost certainly going to be mutual – so if you’d prefer to indulge in a glass of wine here and there, this may not be for you.

I’ve also seen provisions that drug or alcohol tests can be requested, or that if one parent seems impaired before visitation that the other parent can then deny visitation. This is risky, of course, depending on how it is applied – but it may be appropriate in certain situations.

There are some kits that can allow you to do at home drug and/or alcohol tests, too, which you could also look into, if sobriety is a real concern. I guess, technically, the provisions don’t HAVE to be mutual, though they often are, especially if there’s a unique issue related to one parent or the other — and you may find that he is completely unwilling to sign an agreement that implies that he’s the one with the problem, especially absent that determination having been made in court already.

3. Unrelated Overnight Guests

So, what if he’s got a girlfriend?

I can see both sides of this. On the one hand, you are both likely to have romantic relationships again, at some point in the future. On the other, your kids shouldn’t be privy to a revolving door of relationships, either.

There’s also the moral side. Is it appropriate for a child to witness his or her parent having sleepovers? There are both sides of that issue as well, but there is certainly no harm from NOT witnessing that.

Do you want a provision that says no unrelated overnight guests? Romantic overnight guests?

You could also specify that you don’t introduce a significant other to the children until certain criteria have happened; either they’ve been together for a period of time, or until you’ve had an opportunity to meet the person. Give it some thought, and, remember, the same level of scrutiny will be applied to you and any future love interests of yours.

4. Restrictions on who children can be left in the care of

So, now that he has a girlfriend, is he passing the children off to her? Leaving them in her care?

Is your former mother in law an alcoholic, and not fit to care for children alone?

We can also include a restriction on who can and can’t watch the children, especially if there are issues like this.

Like anything else, an agreement is as good as you make it. The more involved you get, and the more information you include, the better – and more ironclad – your agreement will be.

Sure, it’s more challenging to get agreement when you include more provisions – but there’s also less things that can go wrong, since both of you have expectations that are more or less managed. That doesn’t mean everyone is thrilled with every portion of the arrangement, but just that there are some shared expectations and understandings.

It’s not easy. And these ideas just barely scratch the surface. Without knowing more about you and your unique issues, its hard to make specific recommendations for the type of provisions you can include in your signed custody agreement.

For more information, or to schedule an appointment with a licensed Virginia custody attorney, give our office a call at 757-425-5200.