From the beginning, let me be clear: in Virginia, there is no law requiring that custody start out at 50/50. Though that is the law in some states, that is not the law here. Here, the law is that the judge has to consider all forms of custody – primary, shared, and split physical custody – equally and then make a determination that is in the best interests of the child(ren).
But what really happens? In many cases, custody starts out at 50/50.
Why? Because, in its heart of hearts (assuming it has a heart) the court believes that having as much access as possible to both parents is in a child’s best interests. The judges involved seem to believe this almost across the board.
Is that true even if my child’s father was completely uninvolved before the divorce and/or separation?
Oftentimes, yes! To the court, it doesn’t really matter if dad hasn’t exactly been hands on. The divorce or separation is such a major change in circumstances that it makes sense – again, to the court – to consider this a major opportunity to re-evaluate the status quo.
Maybe dad hasn’t been hands on and mom has been the default parent, but doesn’t dad deserve an opportunity? Maybe before he felt differently but now that he and mom aren’t together and time with her doesn’t represent, in a larger sense, family time… well, he’d like the chance to parent himself, too.
And he deserves it.
The kids deserve it. Again, according to the court.
Does that mean that dad can do nothing – and then come in asking for 50/50?
Yes, he can – and many do. Especially in the case of abusive partners, it is very common that they’d petition the court for 50/50 parenting time, even if they were completely formerly uninvolved.
It’s not only abusive coparents, of course; I’m also not denying the possibility that a previously uninvolved dad might genuinely love and want more time with his kids now that he’s separating or divorcing than he thought he needed before when he was married.
He could come in asking for 50/50 parenting time. Keep in mind that, in Virginia, we have shared physical custody, which just means that he has more than 90 overnights with the kids. That doesn’t necessarily mean 50/50 custody. Make sure to listen to what he’s asking for – just basic shared custody, getting him into that 90+ day territory, or fully equal time.
Equal time doesn’t have to mean week on/week off, but it often does. I’ve also seen lots of 4-3-3-4 type arrangements, or even – especially if one parent has relocated – larger blocks of summer time and/or vacation time. Remember, too, that standards may be different for school aged kids versus kids who are too young yet to be in school.
Why is he doing this? He never was interested in custody before.
It’s hard to say. Different people make the same choice for a million different reasons. One theory might be that he wants to see the kids.
Another might be that he’s abusive, and keeping control of the kids is a way to maintain control over you.
A third might be related more to child support than an interest in parenting. Under Virginia law, once you hit shared custody guidelines, the child support is reduced. Under a primary physical custody guideline, the custodial parent (the parent who has the children more) would receive the maximum amount of child support. Once you get into the 90+ day territory, child support is based on a sliding scale. The more time he has, the less he’ll pay. (Though keep in mind that pure 50/50 does not necessarily mean that no child support will be paid.)
Does he want more time, or is he just trying to reduce the amount of child support he pays?
If he gets 50% of the time, are we stuck like that forever?
No. Custody and visitation are modifiable based on a material change in circumstances so, if it isn’t going well, you can petition to change custody. Usually, once at least 6 months to a year has elapsed, the court will re-hear any issues related to the kids, so custody, visitation, and child support.
A material change is going to be broadly construed based on the impact to the kids, as opposed to the impact on the parents.
Is this what’s in the child’s best interests?
It doesn’t really matter what I think, because I’m not a judge and am not tasked with making these decisions. But, no, in my opinion just blindly ordering 50/50 focuses more on the parent’s rights than it does the best interests of the children.
In my view, it makes more sense to prioritize a primary attachment figure – whether that is mom or dad – and let the other parent’s time gradually expand over time. What we’re doing is essentially the opposite: giving both parents roughly equal time (again, not always – but this is just what often happens) and then curtailing it back if the kids aren’t thriving under the arrangement.
But going from having a default or primary parent to both parents having 50/50 if life hasn’t been at all like that before the divorce or separation represents a major shift. It’s hard to compare and contrast outcomes and experiences from children of divorce because looking at one family versus another family is apples to apples.
I don’t see why we don’t prioritize the status quo of the kids – rather than focusing on parental rights – when there’s already so much change and upheaval in the children’s lives. Actually, in Arizona, a recent change in the law made just this update. The primary attachment figure is prioritized, rather than arbitrarily prioritizing equal time.
Maybe more states will follow suit? It’s anyone’s guess. For more information, to download our women’s custody survival guide or to register to attend our upcoming custody seminar for moms, give us a call at 757-425-5200 or visit our website at hoflaw.com.
