I want sole legal and physical custody of our child

Posted on Dec 6, 2019 by Katie Carter

In a divorce and/or custody case, you can get whatever you and your soon-to-be ex/child’s father can agree to or whatever the judge is willing to award. In many cases, we’re really limited by what the judge will do. When the other side knows that, for example, the military retirement will be divided so that each spouse receives his or her marital share (50% of what was earned during the marriage) – there’s not much room to negotiate anything else. Why would the non-military spouse accept less than 50% of what was earned during the marriage? Why would the military spouse give MORE than 50% of what was earned during the marriage?

This kind of thing really limits negotiations, and it’s often no different with child custody. Though it’s hardly as cut and dry as military retirement, there are definitely some limitations.

I hear it all the time: “I want sole legal and physical custody.” I get it. I’m a mom, too, and I love my kids more than anything. But, in a divorce or custody case, you don’t have as much power to demand the outcome you’d like to see as you might wish.

Sole legal and physical custody is extremely rare, and it’s not something that, barring exceptional circumstances, a judge would typically award. So, if your child’s father isn’t just willing to sign away his rights to see the child (and, spoiler alert, most are NOT), you will almost certainly NOT get sole legal and physical custody.

I’m working on a case right now where sole legal and physical custody is one of my client’s biggest hang ups. Her child’s father actually proposed a SUPER narrow visitation schedule – one that is better, frankly, than I think we’d ever get in court – and she’s still not happy. She only wants to see sole legal and physical custody.

I really do understand, but… it’s not reasonable or realistic. And it always worries me that refusing such a reasonable offer will lead him to file for divorce, pursue a contested case, and then ask the judge for even more time – which, frankly, I think he’ll get.

It’s not enough to say that he hasn’t stepped up to be a dad up until now. Most courts will give him the chance. It all relates back to those ten best interests of the child factors, and most courts believe very strongly that having access to both parents is in the child’s best interests. You may disagree, but you’ll also likely find that it’s the judge’s opinion that matters most, not yours. If you have evidence to show how he’s not fit to be around the child (he’s a violent felon or a registered sex offender, for example), you’re welcome to introduce it. It would need to be pretty egregious for you to get supervised or no visitation, though.

I don’t say this to discourage you, but to help you keep reasonable expectations. Generally speaking, even a formerly uninvolved dad will at least have the opportunity to parent his child, especially if he wants it. That doesn’t mean that he’ll get shared custody on a week on/week off basis or something terrible like that, but it does mean that he will likely get some time, whether you like it or not.

In fact, one of the things that you can do to ensure that he’ll get even more time is to appear to be discouraging the development of that relationship. (See factor number 6 – the propensity of each parent to support the child’s relationship with the other parent.) We call it the “friendly parent trap”, and what we mean is that you need to appear friendly and interested in coparenting, or it’ll work against you.

I’ve seen cases where judges take custody from parents because they believe that they’re not willing to coparent with the child’s other parent. If you and your child’s father’s abilities to coparent are on a continuum, you don’t want to be the one who is on the inflexible end! It could really be detrimental to your custody case.

We often call custody factor number 6 the “mom’s downfall” because it’s often moms who really struggle with it. As a mom myself, I can certainly understand – but, also, as a lawyer, I have to tell you to cut it out! Very few things could be worse for your custody case.

It’s important to work with an experienced Virginia custody attorney who can help you understand the laws (especially the new ones, which require the judges to equally consider all forms of custody – including SHARED custody) and what might be awarded if your case were to go to court. It’s probably not reasonable or realistic to expect sole legal and physical custody. You may suggest it one time and try to see whether it’s possible to negotiate it, but if he says no – it’s probably a good idea to change tactics.

It’s very, very unlikely that you’d get sole legal and physical custody if your case went to court, so he has you over a barrel a little. You’re likely going to have to agree to something that doesn’t make you super happy, especially if what he’s proposed is already fairly narrow in scope. For me? Whenever I see something that gives my client primary physical custody (meaning that the non custodial parent gets 89 or fewer days with the child in a calendar year), I feel like we’ve won a pretty big win, especially in today’s judicial climate.

More and more often, in custody cases that are litigated, I see shared custody (90 or more days) awarded. Of course, it’s all highly fact specific, so you’ll likely want to talk to someone about your custody and visitation schedule and any proposals your child’s father has made.

For more information or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.