When it comes to raising children, we all have a million different ideas about how it should be done – and, the thing is, they can vary pretty dramatically from one person to the next, or from one family to the next.
As a mother myself – and a family law lawyer dedicated to representing women exclusively – I hear a lot of things about moms. People tell me, with completely straight faces, that moms are the ones who are best equipped to raise their own children. That dads are victims of parental alienation. That moms should have to account for every dollar they receive in child support. That custody should be automatically shared 50/50.
Moms are good, moms are bad. Dads are good, dads are bad. Custody should always go to moms; the court favors moms. Custody should always be 50/50; the court favors dads.
It can’t all be true. It isn’t all true; in fact, I would venture to say that almost none of it is true.
There is no 50/50 custody ‘requirement’ in Virginia; all custody and visitation decisions are made on a case by case basis, based on the ‘best interests of the child’ factors and modifiable based on a material change in circumstances.
The court does not give a weight of preference to moms or dads. Though custody decisions vary a lot based on the judge involved and the specifics of each case, if I had to give an opinion I’d say that, in general, the court prefers arrangements that allow both parents to be involved whenever possible. That’s not always possible, of course, because of the distance between the parents, because navigating coparenting can be challenging, because some parents are struggling with drug or alcohol addiction, because of previous physical, sexual, or emotional abuse, or because of various mental health struggles.
In a normal case, though, where there’s two flawed but essentially loving and well-meaning parents, the court prefers to see both parents involved.
So, it can be really challenging to have a client come in who has the preconceived notion that the best arrangement for a child is the one that involves mom to the greatest degree.
I’m a mom, too. And, in my own family, I do the bulk of the child-related things. If I’m being honest, I do think that I have more patience for it. I do the doctors appointments, the school paperwork, the permission slips, the gift shopping, the schedule organizing, the grocery shopping… on and on. It’s not that I’m the only one who can, but, well, for whatever reason, that’s how it is.
I understand that, emotionally, the bond with our children is incredibly strong, and the physical pain that results from separation is a real thing.
While I understand, though, I write this article today for a different reason: to say that, if you’re feeling this way, you’ll find out very quickly that the court does not agree. There is no presumption in favor of mothers, and, in fact, I find that (excuse me – I just remembered an email I need to send to my son’s teacher) moms who come into court with this attitude end up hurting their cases.
“I’m not going to give my child’s father any parenting time until the judge says I have to.”
It’s a pretty common refrain. The parties separate, divorce, or otherwise break up, and suddenly dad is persona non grata. Maybe he deserves it. Maybe he doesn’t. It really doesn’t matter, for the purposes of the point I’m trying to make here. Mom believes that she’s the best person to take care of the children, and says so, repeatedly. She also refuses to allow dad any meaningful parenting time unless and until the court orders it.
Yikes. Judges don’t like that. In fact, in those cases, I often find that 50/50 custody is awarded – or worse. To be honest, I don’t actually think 50/50 custody is a bad thing; in fact, it can be really, really good, for both parents. I’ve also heard of judges ordering custody to one parent or the other (and visitation to the other parent) because one parent will be better at facilitating coparenting than the other, so it’s also possible that this attitude could risk losing you custody completely.
When it comes to custody and visitation, especially when you’d prefer that dad not be around at all, what’s the best thing to do?
So, you really feel this way, for one reason or another. You’re the better parent, the more active parent, the one best situated to deal with your child(ren)’s day to day needs. You don’t want 50/50; in fact, you want 100% of the parenting time. If you had your way, your child’s father would see the children minimally, if at all.
That’s fine. In fact, that’s pretty common. It’s probably fair to say that some pretty bad stuff went down when you guys broke up, and it’s possible that he’s also a terrible, abusive person.
If you shouldn’t go into court and say that you don’t want him around, what SHOULD you do?
It’s probably best, whenever possible, to try to reach an agreement that gives you something more than 50%. The more time you keep, the better. If you go into court and tell the judge that you should have custody because you’re mom and that’s it, I’m afraid that you won’t really endear yourself to the judge or the Guardian ad litem, and you’ll probably wind up with less time than you can negotiate by agreement.
Keep in mind that custody and visitation is always modifiable based on a material change in circumstances, so whatever you get now is not whatever will exist forever and ever – quite the contrary, actually! The more time you keep, the better position you’ll be in later, when circumstances change, and you can ask for more time. If the children aren’t doing well, or if he’s not doing well, or if he’s military and his orders have changed, or whatever, you can ask for a change in parenting time. You really need to remember that custody and visitation cases are a long game, not a short one, so you want to make decisions now that put you in a better place to expand (rather than reduce) your time in the future.
Remember: you’ll also need evidence. This is not just about what you can allege, it’s about what you can PROVE. (And, also, what he can prove against you, so just keep this in mind for when/if the shoe finds itself on the other foot.) You’ll want to show that he’s abusive, or addicted, or distracted, or whatever it is that he’s doing that makes him not the best parent for the children. You’ll want to also look into instituting things like rights of first refusal or limitations on in law involvement to minimize potential issues that might arise during the parenting time that he does have.
Keep in mind that your agreement is customizable, so you can make additions to your agreement that reflect your situation and help to make you more comfortable with the arrangement. Do some real thinking about what would make you feel better and talk to your attorney about how to add specific provisions to your agreement that will address your concerns.
For more information, or to discuss your case one on one with one of our experienced Virginia custody attorneys, give us a call at 757-425-5200.