Even though Virginia does not assume 50/50 custody – the statute actually just says that the court must consider all forms of custody equally – it is still often the starting point in many custody cases, especially contested ones.
I’m not a fan of automatic 50/50 custody; I think it creates a situation focused on equity between the parents rather than one that considers the best interests of the child(ren) involved.
But what do you do if your case is leaning towards 50/50 and that’s not something that you feel is in the best interests of your child(ren)?
It’s a good question and, I’ll admit at the beginning, not always something we can avoid. In a family law case, there are only two options: either (1) you and your child’s father reach an agreement, or (2) you go to court and are bound by whatever the judge decides. As you can probably imagine, since there are so many different courts and so many different judges, this means that outcomes can vary dramatically. One sort of uniform way of thinking, though, is that many judges in Virginia seem to believe that relatively equal access to both parents is what is best for most children.
In a sense, it doesn’t matter whether or not you or I think that this is a fair or appropriate conclusion; what matters is that, assuming that this is a belief that many judges share (which I do believe to be true), we have to figure out a way to combat that assumption. I’m not here to just express my own opinion, but to tell you what I think is a fair and accurate reflection of collective judicial opinion.
Are there limitations? Sure. In a case where one parent has a drug or alcohol addiction, has been physically, emotionally, or sexually abusive to the children, there is a relocation, a general inability to coparent, or some other factor, it is possible that the court would make a decision that something other than 50/50 custody is appropriate. There are situations, in short, where 50/50 would be less than desirable, even for judges who are generally pro-contact.
Still, I think you’d be unwise to start from any place other than one that assumes your judge will be pro contact.
Even absent one of those big issues – addiction, abuse, relocation, etc – I think you can make a credible argument that something other than 50/50 will be in the best interests of your children.
After all, the point here is not what is best for all children or most children. The question is not what studies say about average children in a particular set of circumstances. No, best interests of the child is designed to be an individual standard. It’s not what’s best for children, generally – it’s a question of what will be best for your child, or your children, specifically.
The best argument is one that uses the ten best interests of the child factors from the statute and makes a specific argument, with evidence, about why something other than 50/50 will be in your child(ren)’s best interests.
Ideally, you’d be able to show how you’ve shared coparenting responsibilities and parenting time up to this point and provide details about how your child(ren) have coped. Are they doing well or doing poorly? What is working and what is not? Why do you think the situation exists the way that it is? To the extent that you have witnesses and evidence – teachers, coaches, therapists, doctors, etc – who can help you make the points you need to make, you should consider bringing them in to court to testify, either as expert or lay (regular person) witnesses.
We can look at their medical needs. Their therapeutic needs. Their grades. Behavior. Close friendships and other relationships. Whatever metric is going to help show what is working – or, on the other hand, not working – for your children is one that we need to consider and examine.
Keep in mind, too, that custody is not a “one and done” situation. For many moms, custody and visitation is decided initially – maybe 50/50 is awarded, or maybe something else is – and then it is later modified based on how the children are actually doing. To many courts, it is difficult to tell, in advance, how the children will cope with the changes associated with coparenting. If dad hasn’t, for example, been a primary parent before the separation, breakup, or divorce, that doesn’t necessarily mean that the kids wouldn’t thrive if he had more parenting time – it just means that, up until now, he hasn’t. Many courts will, on balance, at least give dad a chance to try to coparent.
But if he does get parenting time and then it isn’t going well – or he’s not even exercising the time he asked for – it might be worth considering a modification, either to reflect what will be a better way of meeting the child(ren)’s needs or what is actually happening. Modifications in Virginia can be filed when there is a material change in circumstances. What constitutes a material change is something that will be broadly construed based on the impact of the change(s) on the children.
No matter how you slice it, custody and visitation cases are twofold. First and foremost, you have to ask the court for something. You have to come in with a specific proposal. You don’t want to just say, for example, that 50/50 won’t be in your children’s best interests; you have to come prepared with a proposal that you believe best addresses whatever you think is in their best interests – ideally, a proposal that is backed up with evidence, witnesses, and exhibits.
Secondly, you have to make an argument about best interests. You should go through the ten best interests of the child factors and pull out specific things that support your proposal and demonstrates how it is in alignment with the child(ren)’s best interests.
Each case is going to vary dramatically depending on the children and the facts involved, but the takeaway should be that you have two jobs here, if you want to argue for something other than 50/50 custody (especially if 50/50 has either already been ordered or is likely to be ordered):
-
Come in with a specific proposal. (Don’t just oppose 50/50 without offering something else as a suggestion.)
-
Focus on how your suggestion is more in alignment with what your child(ren)’s actual best interests are – backed up with evidence, witnesses, and exhibits, as needed.
Keep in mind that the court may not get this right the first time. In fact, it can be hard – if not nearly impossible – to convince a court to deviate from a 50/50 parenting schedule. Still, if this is your goal, these are the things you’ll want to begin thinking through.
For more information or to request a copy of our book for Virginia moms, give our office a call at 757-425-5200 or visit our website at hoflaw.com.