How do I get sole custody?

Posted on May 26, 2019 by Katie Carter

All moms want sole custody. Hey, I get it – I’m a mom, too. And let’s just say that I share your belief that no one can do it – that is, mom my child – better than I can.

And, in your case, there may very well be other issues, too. There’s often domestic violence, or differences in temperament and parenting style. Maybe he has mental health issues, or problems with drug, alcohol, or other substance abuse. There can be lots of reasons — good, bad, and otherwise – why you might not want your child to be alone in his father’s care.

But that may or may not be reasonable, and a lot of it will come down to what a court will do. In many cases I’ve seen recently, especially since the law changed on July 1, 2018 to say that the judge must consider all types of custody equally (essentially, meaning that a judge MUST consider shared physical custody alongside primary physical custody to one party or the other), I’ve seen shared custody awarded.

Let’s back up a minute. What’s the difference between shared custody, primary physical custody, and sole physical custody?

Let me say, at the outset… Very, very rarely is sole custody a thing. In fact, I can’t think of a time recently where I saw sole custody awarded. And often, when someone talks to me about sole custody, I feel the need to clarify, to be sure I understand what they mean.

In Virginia, we divide custody into two categories: legal custody, and physical custody.

Legal custody refers to the right to make three types of decisions on behalf of the child: non emergency medical care, religious upbringing, and education. Legal custody is almost always awarded jointly, because judges believe that the right to make these types of decisions – or, at least, participate in making these decisions on behalf of a child – is critical to being a parent. It’s very rare that I don’t see this awarded jointly. (And often, when it’s solely awarded to one party, it’s temporary – like, when one party goes on deployment. When the other parent returns from deployment, it often goes back to joint legal custody.)

Physical custody, on the other hand, refers to where the child spends the majority of his or her time. Physical custody is where we see most of the custody disputes brewing.

I think, when you refer to sole custody, you mean that you want to have BOTH sole legal and sole physical custody. I think that’s probably almost always unrealistic, but keep in mind that the facts involved (and the evidence we can present) does have a bearing on a judge’s decision. And, obviously, I don’t know you or your case, I’m just speaking in generalities here.

So, what’s the difference between shared physical custody and primary physical custody?

Primary physical custody is probably a more reasonable, attainable goal than sole custody.

Primary physical custody is when the non custodial parent – the parent who has the child less – has 89 or fewer days with the child during a calendar year. As far as the court is concerned, this is probably the biggest way one party can “win” custody.

Shared physical custody is when the non custodial parent – the parent who has the child less – has 90 or more days with the child during a calendar year. This can be 90 days – the bare minimum – or you can split the year at 182.5 days – or any other combination of numbers of days in between 90 and 182.5.

Under a primary physical custody arrangement, you receive the maximum child support available under the law. Under shared physical custody, child support is on a sliding scale, depending on how much time each has with the child. There are more bits and pieces that go into a child support calculation as well, so you can read about that here.

So, how do I get sole custody?

I don’t think you’ll get sole custody in court, unless you can prove some pretty seriously egregious conduct on the part of your husband/child’s father.

You’d need to prove that he’s an issue for your child to be around. That is, that he has physically or sexually abused your child, that he’s not fit for custody because of his drug, alcohol, or other substance abuse issues, or whatever. And I don’t mean allege – I mean PROVE. You’ll want to have concrete, verifiable evidence – not just conjecture.

Any allegations of this sort are always risky because it’s easy to look like a vindictive woman. Judges are jaded; they’ve seen all sorts of terrible situations and, in some cases, moms have been known to exaggerate – to do or say anything they can – to keep their child’s father out of the child’s life. Regardless of whether what they’re saying is actually true. Judges won’t refuse visitation to a father, generally, without PROOF.

So, you’ll want to be prepared for this before you talk to an attorney. Probably a good idea to have an idea of the proof that you already have before your appointment and, to the extent possible, bring copies for the attorney to review. Your attorney can tell you the likelihood of success based on the merits of what you provide.

Remember: you have to prove that he’s a problem FOR YOUR CHILD, not for you. His abuse of you doesn’t usually translate into sole physical custody. He has to also be dangerous or bad for the child to be around.

And be prepared: a case like this is expensive, and it’s often an uphill battle. You may have to fight for drug testing or with different companies that you’ve subpoenaed for records related to charges he has faced or treatment he has received.

You’ll likely have a guardian ad litem appointed, too, who will interview you, your child’s father, your child, and any other important people in your child’s life (daycare providers, teachers, therapists, etc) and ultimately make a recommendation to the court.

It’ll also be expensive! You’ll need to be prepared for that as well.

What if he agrees to give me sole custody?

Well, that’s perfect! If he’s happy to walk away, and will sign something to that effect, then great. That’s way easier – and cheaper – than going to court.

This is pretty rare, though, especially if you’re still expecting him to pay child support.

You should probably also know, too, that he can’t just sign to waive his parental rights. That’s not really a thing. In order to lose parental rights, the judge has to decide that someone has lost the rights. It’s a serious thing – usually after years and years of abuse and neglect – and its not something the judge undertakes lightly, because a person with no parental rights also has no obligation to pay child support. The child effectively becomes the responsibility of the state, so, yeah, it’s safe to say that the judge doesn’t take on that responsibility (on behalf of the state) easily, and certainly not just because someone signed something saying that they don’t want their kid anymore.

In all likelihood, though, you’re probably gearing up for a fight. You’ll need a dedicated, experienced custody attorney at your side – these cases are not for the faint of heart. For more information, request a copy of our custody book, or any of our free reports (but maybe pay special attention to our special report on physical and sexual abuse cases in Virginia). Feel free to also give us a call at 757-425-5200 to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys. Good luck!