Primary Physical Custody in Virginia

Posted on Oct 2, 2013 by Katie Carter

As far as custody cases go, primary physical custody is pretty much the holy grail. I have clients all the time who tell me that they want sole custody, but these days, that’s really not something that happens. So what is the court looking at when making a decision? That’s a great question.

First of all, the court differentiates between legal custody and physical custody. Legal custody deals with the right to make three kinds of decisions about the child’s upbringing: religion, education, and non-emergency medical care. In 99% of cases, parents share joint legal custody. Why? Well, mostly, because the court views this as an important part of being a parent, and it doesn’t like to take this right away. Even when a parent is less involved than he should be, he has a right to contribute where these types of major decisions are concerned.

Physical custody, on the other hand, deals with where the child spends the majority of his or her time. Because legal custody is nearly always automatically shared between mom and dad and because, although these issues are of incredible importance, they aren’t usually issues that parents continually fight over, physical custody is where most of the drama comes from.

Once they find out that they really can’t get sole custody (especially if dad is interested in having anything to do with the child), most moms ask for primary physical custody, especially after we’ve discussed all the options for custody.

In a primary physical custody situation, the custodial parent (the parent who has the child more) has the child most of the time, and the non-custodial parent (the parent who has the child less) has 89 days or les per year.

In a shared physical custody situation, on the other hand, the non custodial parent has 90 days or more with the child per year. There isn’t a specifically defined number of days; that’s something that the parents have to work in their agreement or that the judge will order. An important difference between shared physical custody and primary physical custody, though, is that shared physical custody changes the way child support is awarded. After that 90 day mark, the non-custodial parent receives credit for the amount of time he spends with the child. In a normal situation, where dad earns more than mom and the child spends most of his or her time with mom, dad’s child support obligation will be reduced. In a primary physical custody situation, dad pays the same amount of child support whether he sees the child one day a year or whether he takes all 89. Shared physical custody is the opposite. If dad spends 90 days with the child, he will pay more in child support than if he has a full 180 days.

These days, I’m seeing shared custody happen more and more often, especially in litigated cases. If you and your child’s father are fighting over custody and you go to court, chances are that the judge will award something like shared custody. When I see primary physical custody situations, it’s usually because that’s how the parties agreed to handle it. If you find yourself headed towards a custody battle, give our office a call at (757) 425-5200. If you can’t afford an attorney, consider attending our Custody Bootcamp for Moms. It’s taught by Kristen Hofheimer, author of the “Women’s Custody Survival Guide,” and is designed to help moms learn how to prepare their own custody cases. Good luck!