Moms Versus Dads in Virginia Custody Cases

Posted on Dec 22, 2017 by Katie Carter

Full Disclosure: Our firm represents women exclusively in divorce and custody cases.  If you’re looking for something written by activists for Father’s rights, you’re in the wrong place.

Custody cases are complicated and constantly changing, which probably explains why there is so much misunderstanding out there.  I meet with one woman who tells me she knows she won’t lose custody because moms always win, and another who tells me that her child’s father says he’s going to take the child and not pay her a dime in support, and she knows she’ll lose because he has the resources to fight it and she doesn’t.

So, who’s right? It’s a constant evolution, and I think we’re in the midst of a pretty seismic shift right now.  States all over the country are considering moving towards a presumption of shared custody in cases where parents can’t agree on how custody and visitation should be resolved – and that’s, quite frankly, shocking. Though there are certainly plenty of proponents of a presumption towards shared custody, there are also many arguments against it.

Lots of Father’s Rights groups have become increasingly active in recent years, pushing for these changes to be made, without deference given to the best interests of the child standard that most states have adopted in more recent years. Once upon a time, it used to be that custody was almost always decided in favor of the mom.

Referred to as the “tender years” presumption, many judges and attorneys assumed that the most nurturing environment was going to be with mom as opposed to dad.  It assumed that moms had a certain ability to aid in the development of a child, particularly at a young age, that dad lacked.  Though now mostly discredited, there is sometimes at least a small presumption towards the mother in the cases of a very, very young (usually, breastfeeding) child.  I call that presumption a small one, because it’s not one shared by all judges, or applied equally to all (presumably breastfeeding) moms.  Some judges are skeptical, or look at a breastfeeding mom as one who is wielding a weapon against dad (perhaps even breastfeeding longer out of spite in an attempt to curtail dad’s visitation)—and, in the eyes of some judges, the actual breast is not necessary.

A breastfeeding mom, judges sometimes reason, can certainly just pump, and provide the pumped milk to dad during his visitation.  To argue about nipple confusion, or the benefit of providing the milk from an actual breast for the sake of bonding and the appropriate physical and emotional development of a child, an expert witness would have to be introduced.

So, all that to say, the tender years presumption has mostly fallen by the wayside in favor of the best interests of the child standard, which doesn’t assume that either mom or dad is the better fit for the child’s primary custodian, but looks at a number of factors to help determine what kind of arrangement would best suit a particular child.

As you can imagine, it’s not easy to apply these standards both uniformly and uniquely—to provide both consistent, predictable results in custody cases, and to take care of the needs of each specific child with regard to his/her special circumstances.  A wide range of types of possible verdicts abound.   In Virginia, we use ten “best interests of the child” factors to influence our decisions in custody and visitation cases.  They are:

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 family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

There’s not today any kind of presumption of shared custody, but we are definitely seeing more and more judges trend that way, especially in the types of cases we’re talking about: where mom and dad just can’t agree.

Keep in mind that we’re not talking about an across the board award of shared custody, regardless of circumstance.  We’re talking about the moms and dads who can’t reach any agreement at all with respect to custody, the ones who wind up in court.  That’s probably only 10-20% of cases overall – and of those that start out in court, very few actually go all the way through to trial.  Though probably, if I were to really look at those cases in depth, I’d see that the majority, whether they went to trial or no, wound up with some kind of shared custodial arrangement.

Shared custody doesn’t assume 50/50, though.  In Virginia, shared custody refers to any custodial arrangement where the non custodial parent has more than 90 days with a child in a calendar year.  So, obviously, shared custody can range from just 90 days, to splitting the year exactly in half.  Many dads do want to fall into shared custody territory, regardless of their interest in parenting, because shared custody results in a decrease in child support.

The theory there is that, if dad is taking the children on for a greater portion of the year, his expenses (his groceries, utilities, even his rent or mortgage, in the sense that he’ll really need a place for the kids on a regular basis) will be greater.  It’s difficult for many  moms, though, to survive on the reduced child support – the guidelines were never overly generous to begin with, and don’t account for mom’s significantly changed circumstances post divorce or separation.

These days, we’re definitely facing an uphill battle when it comes to custody, and it’s important to be as prepared as possible for what could happen.  Custody cases are never easy, but the climate is different now than it used to be, and it’s impossible to ignore that.

In many cases, it’s possible for moms and dads to reach an agreement regarding custody – but that’s not always the case. Cases where relocation, reunification, physical or sexual abuse or other unusual issues at stake, like homeschooling, disabled children, or breastfeeding are at stake are even more difficult.

It’s important to do as much research as possible to prepare yourself for the type of battle you’re going to be facing.  While there are many areas of law where you can represent yourself, in a custody battle, the stakes are often too high to risk it.  You’ll want a competent, experienced attorney at your side in your case – there’s really no way around it.

Though I’m all about DIY when you can, a serious custody case requires a serious attorney. Want to learn more about custody cases – or you’re still considering representing yourself?  Request a free copy of our report, “Can I REALLY Represent Myself in my Virginia Custody Case?” by clicking here, and make plans to attend Custody Bootcamp for Moms, our Virginia custody seminar for moms. Want to read more about the changes in the law?  This Washington Post article is really interesting and well researched.  For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757 425-5200.