When a fight is brewing over custody of the children, it’s important to understand what, exactly, you and your child’s father are really fighting over. A lot of times, I find that people say things like, “I want sole custody!” without really distinguishing between legal and physical custody, and separating out what it all means.
I’m never quite sure, exactly, what sole custody means to someone. To me, it means sole legal and sole physical custody – which, frankly, is very difficult to get, especially if you’re depending on having a court award it to you.
I find, though, that many people don’t really understand the difference between legal and physical custody and, when it all comes down to it, they really just want the child to live predominantly with them. In many cases, these people also believe that it would be ideal to NOT have a particular custodial schedule spelled out in black and white.
To really be able to articulate what you want in a parenting plan, it’s a good idea to have an idea of what the different types of custody are and what they mean. It’s also a good idea to have a basic understanding of custody law in Virginia generally, so you can see where you might run into problems later on down the line (like, for example, why it can really put you in a tough spot if you don’t have specific designated parenting time for each of the child’s parents!). Today, though, I’ll deal mostly with discussing the different types of custody, with an emphasis on legal custody in Virginia. For more information about custody law generally, including problems you might run into, I definitely suggest downloading a free copy of our custody book for Virginia moms.
Legal Custody in Virginia
Legal custody refers to the right of a parent to make three types of decisions on behalf of a child: (1) education, (2) non emergency medical care, and (3) religious upbringing.
The courts view the right of a parent to weigh in on these decisions as central to parenthood, so almost always awards legal custody jointly. That means that the parents have to discuss and agree on these issues together, and collaborate for the sake of the children.
In many cases, legal custody isn’t much of an issue, because these points are fairly foundational. It’s not like a mom and a dad have to sit down every other week to discuss whether they’ll keep the kids in school, or whether they’ll continue to go to church. For the most part, these decisions are made once, and then followed through for the remainder of the child’s 18 years. It’s often not a wishy-washy back and forth.
That’s not to say, though, that disputes can’t arise. Specifically, we see three types of disputes come up, and we’ve outlined them below:
Public versus private school is a biggie. For many families, the decision is made when the child is enrolled in kindergarten, and then not revisited. But a divorce especially can change the financial landscape, and make paying for private school untenable for one or both parties.
In the event the parties can’t agree, the issue would go to the court.
The court is generally very sympathetic to the financial burden that having children in private school would place on the parties, especially if one party truly can’t afford it. I’ve seen cases where one party agrees to bear the burden of the expense, and I’ve seen plenty where a lot of evidence, witnesses, and exhibits are created to demonstrate how important the child’s teachers and school life are to his well being and development. Ultimately, it comes down to the judge – but judges are often loath to see a parent who can’t afford private school being stuck paying for an amount that he or she feels that they really can’t afford.
It doesn’t come up that often, but when non emergency medical care is an issue, it’s often related to vaccinations.
We’re not talking, of course, about responding to a crisis. If a child needs an appendectomy while he or she is in your care, you have to take care of it. Sometimes, an emergency requires that you call unilateral shots – though I would say that it would certainly look best for you if you involved your child’s father throughout, let him know where you are, how to visit, and how to participate in decisions wherever possible. But sometimes, pre-planning isn’t possible, and you just have to follow medical advice quickly – or risk disastrous consequences.
Where vaccinations are concerned, if the parties can’t agree, the judge will get involved as well. I would think that, in general, the scientific evidence in support of vaccinations would often be convincing to a judge, but the religious and other convictions of the other parent would certainly be relevant.
In this case, it’s probably a question that comes down to experts. The court doesn’t ‘know’ these things on its own, it has to be convinced based on the strength of the evidence before it. So, strong expert witnesses on either side would be important, and they would also need to withstand blistering cross examination as well.
Religion comes up, too; sometimes, it’s in the sense that one parent doesn’t want the child to be raised in any religion, or believes that the other parent’s religion is harmful, and in other cases it can be a dueling religions thing.
Most courts, it seems to me, feel that each parent can do what he or she wants in his or her own time, but can’t force the other parent to follow their strictures. So, if you’re Christian, go to church during your parenting time. If you’re an atheist, don’t. If he’s Jewish, he can take the child to Temple on his time.
If there’s something else going on, something more nefarious, again, it would come down to experts and evidence, and whether practicing a particular religion would be considered not to be in the best interests of the child.
What happens when parents disagree when they have joint legal custody?
Both parents are equal, regardless of how parenting time is allocated, so there’s no tiebreaking vote. When the parents don’t agree, they either agree to disagree or they go to the judge and let the court decide the issue, based on the strength of the evidence and witnesses they can present, and the “best interests of the child” standards applied.
It’s not a perfect situation – but I’m not sure how else the court could do it. It’ll come down to a judge’s conviction, rather than a parent’s. But, of course, there’s always an appeal, if you get a result you don’t like.
For more information, or to schedule a consultation with our office to discuss your specific concerns, give our office a call at 757-425-5200.