Is there a 50/50 presumption for custody in Virginia?

Posted on Jan 24, 2024 by Katie Carter

Family law – which includes divorce, child custody, visitation, child support, and spousal support – is a particular area of law that is incredibly state-specific.  What you find to be true in one state is not necessarily true in another.  Even states that are nearby – like, for example, North Carolina and Virginia – are not necessarily closely aligned.

There may be similarities; there may be differences.  In the case of North Carolina and Virginia, one of the things that comes most immediately to my mind is a so-called ‘alienation of affections’ cause of action.  Basically, in North Carolina, if your husband cheats on you, you can sue the other woman for alienation of affections.  That’s not so in Virginia, but I often get a lot of questions about it.  We have no such cause of action.

Anyway, that’s not particularly relevant to today’s discussion; I only include it to illustrate a point. From state to state, things can be dramatically different.

When it comes to custody and visitation, there is a lot of variation.  Though all states have some version of ‘best interests of the child,’ and custody, visitation, and child support are areas of law that are always modifiable – in Virginia, based on a ‘material change in circumstances’ – the actual ways that custody and visitation are handled can be dramatically different.

In many places, there has been a distinct push for mandated 50/50 custody, meaning that the statute regarding custody and visitation would set 50/50 custody as a default presumption.  Though you could have evidence to support an argument that something other than 50/50 is in a child’s best interests – particularly if there’s some huge issue, like child abuse, addiction, mental illness, and so on – the court would start out assuming that custody would be awarded 50/50.

In Virginia, there is no such presumption for 50/50 custody.

Let’s take a look at the law.  (I know, boring, right?  But there’s no better way to understand what the law is than to actually take a look at it on the page, in black and white.)

Virginia code 20-124.2 provides:

In determining custody, the court shall give primary consideration to the best interests of the child. The court shall consider and may award joint legal, joint physical, or sole custody, and there shall be no presumption in favor of any form of custody. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either.

Full disclosure: the emphasis added there is mine.

There is no presumption in favor of any form of custody.  This means that the court must consider ALL forms of custody – primary physical custody, shared physical custody, and split physical custody equally – without giving preferential treatment to any.

The court then uses the ‘best interests of the child factors’ to determine what, exactly, is in a child’s best interests.  Here are those best interests of the child factors, provided in Code 20-124.3:

  1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
  9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and
  10. Such other factors as the court deems necessary and proper to the determination.

What does this mean for custody and visitation determinations in Virginia?

So, when you go to court for custody, visitation, and/or child support, you make an argument – based around the best interests of the child – that argues specifically why the custody arrangement you would like is in their best interests.

Many moms petition the court for primary physical custody, which is a custodial arrangement where the non-custodial parent (the parent who has the child less, but, in this case, the dad) has 89 or fewer days over the course of a calendar year.

In litigated cases – cases where the court resolves custody because the parties are not able to reach an agreement of their own – it is fairly common for the court to start with a shared custody arrangement. It is important to note, though, that shared custody doesn’t automatically mean 50/50 custody.  Shared custody is any custodial arrangement where the non-custodial parent has between 90 and 182.5 days.  Needless to say, that’s a pretty wide range!  Ninety days and 182.5 days are two very different things.

Custody and visitation is a continuum, and it’s often modified.  Don’t think of it as ‘one and done’.

Custody is rarely a ‘one and done’ type thing.  Though I do see judges being particularly willing to give dad the benefit of the doubt, even if he hasn’t been particularly active in raising the kids up until this point (and even if he can’t name the pediatrician or the children’s teachers), chances are good that he’ll at least be given a chance to try.

That doesn’t mean that the court will start at 50/50, but it is possible.  In my experience, courts seem to like week on/week off arrangements, as well as ones that follow a pattern like 4-3-3-4.  But custody and visitation is always modifiable based on a material change so, if things aren’t going well and the children aren’t thriving, you can always modify it later.

If you’re worried about his ability to do it – or even his willingness to do it – you can also document how the parenting time is going.  Just the fact that the kids come back dysregulated doesn’t necessarily mean that it’s bad for them (this is actually pretty common), but if they’re doing poorly in school, their mental health is suffering, or you’re seeing other adverse impacts, it’s worth documenting.

In fact, I’d argue that you should ALWAYS document.  Keep a journal for this specific purpose when you document dates and times.  If he shows up late, document it.  If he flakes at the last minute, document it.  If he has something he has to do on his parenting time and asks you to take the kids back, document it.  (Incidentally, add in a first right of refusal if you can.)

Oftentimes, dads ask for 50/50 custody – probably because they want to think they can do it – but also because 50/50 custody comes with it a reduction in the amount of child support they pay.  And, if I’m being cynical, I’d say that if there’s one thing dads are interested in doing, it’s in paying as little as humanly possible to their ex-wives each month.  (Even though I feel like I have to add that it’s not money he’s paying TO you FOR you, it’s child support and it’s the BARE legal minimum.)

But, if he’s not following the parenting plan, or if he’s regularly defaulting the parenting time back to you, you should keep the records that reflect it.  If you are doing the heavy lifting, he shouldn’t get the reduction in child support that comes from having 50% of the time.  He needs to be exercising it, and incurring the costs associated with having kids in his home 50% of the time, in order to pay that level of child support.

In Virginia, there is no presumption for 50/50 custody!  (Though you may find that, if you litigate, you at least START with something fairly close to 50/50.)

Though there is clearly no official, legal, mandatory presumption of 50/50 custody, there is a general feeling that children do better when both parents are involved.  Though there may be additional circumstances in your case, you would have the burden of proof associated with making that case – meaning that you’d have to provide evidence, witnesses, and exhibits that support your argument that a different form of custody is in the child’s best interests.

You don’t have to establish that 50/50 is not the standard or that 50/50 should not apply in this case, you just have to argue that a particular custodial arrangement IS in the child’s best interests.  The judges are required to consider all forms of custody equally.  Maybe what you ask gives dad the bare minimum 90 days to fall into the shared custody category.  Maybe that satisfies him, even.  Maybe you really do need primary physical custody, or maybe he’s incapable (or unwilling) to truly be a 50/50 parent.  These are all facts you’d want to introduce to make your case.

For more information, to register for our upcoming custody seminar for moms, or to request a copy of our Virginia based custody book for moms, give our office a call at 757-425-5200.