Custody and visitation can be sort of a tricky subject and, if you look on the internet or poll friends on social media, you can get a wide range of (not necessarily correct) answers. It’s always wise to at least talk to an attorney when you have legal questions, rather than relying on (well-meaning) non-attorneys, but, hey, I get it.
Attorneys are expensive and, well, probably intimidating. Keep in mind, though, that you don’t necessarily have to hire an attorney just to consult with one, so you can have your questions answered, in many cases, without actually retaining an attorney to hire you. Depending on the lawyer or law firm that you’re looking at, too, you may find other ways to get your questions answered that doesn’t necessarily involve a costly consultation. At our firm, we have a free custody book for moms and a low cost divorce seminar as well as a custody seminar – all specifically designed for moms navigating this (confusing!) process.
Do I have sole custody?
Whenever someone talks to me about sole custody, I start by asking a few questions to make sure she and I are on the same page.
Generally speaking, I don’t see much “sole” custody. The court separates out custody determinations into legal custody, which can be awarded solely to one party – though, admittedly, its rare – and physical custody, which is either awarded as primary, shared, or split physical custody.
When you say sole, I assume you mean sole legal and sole physical, but that’s almost a unicorn type situation. Legal custody, which refers to the right of the parties to make three types of decisions on behalf of the child(ren) (non-emergency medical care, religious upbringing, and education), can be awarded solely but is almost always awarded jointly. Why? Well, because the court thinks that the right to contribute to decision of this magnitude are so central to parenthood that – yes, even for deadbeat dads – it doesn’t like to leave one parent out.
When we talk about physical custody, we don’t see the word sole at all. Even under a primary physical custodial scenario, that doesn’t mean that dad has no time – it actually just describes a situation where he has 89 or fewer days (defined as 24 hour periods) over the course of a calendar year. It doesn’t mean that he exercises that time or even that he has time formally defined, but he usually has the option or opportunity to take at least some time with the child.
Also – and this is sort of another little wrinkle – you don’t really have anything if you haven’t either negotiated a custody agreement between you and your child’s father or been to court and had a judge determine custody and visitation.
Yes, you heard me right.
Unless and until you either sign a negotiated agreement regarding custody and visitation or you go to court and a judge formally decides custody and visitation, you and your child’s father both have “custody.”
Think of a married couple, right? If they have kids together, they both have custody. No one has “sole” custody, even if mom is the default parent. Whether they’re happily married or unhappily married, they both have rights to the kids.
The same is true for single parents, though it feels like it’s less clear for a lot of people, especially if mom and dad don’t live together (or maybe never even lived together). If you don’t have an agreement and you haven’t been to court, you both have custody. Even if the kids have only ever lived with you. Even if he’s never had them alone. (Remember, reader – this could also be true of the married couple, right?)
You don’t have “sole” custody unless you’ve been to court and the judge has given you sole custody or you’ve agreed in a signed writing that you have ‘sole’ custody. Keep in mind, too, that “sole” custody is not the same thing as a termination of parental rights, which is also not the same as a stepparent adoption.
Do I need to go to court to get custody established?
Well, this question has a less clear answer, though I do think it follows logically. “Well, if I don’t have custody, do I need to get it?”
I think it depends. Do you need child support? Child support is a big reason people end up going to court. Keep in mind that a child support case can quickly turn into a custody case too – especially once he realizes that he can pay less in support if he has more parenting time – so you’ll want to be prepared for that. Though, of course, I do NOT mean to imply that you shouldn’t ask for child support if you and your child’s father have a child in common. Your child has an entitlement to it; you absolutely should! But you should also know what to expect.
As far as custody is concerned, I think the question is more along the lines of “Well, what is currently happening?” Is he asking for things you aren’t comfortable with – or is he absent? If he’s not participating and not threatening to, you might have no need to file for custody and visitation. You don’t need to fight to establish what’s already in existence.
But if you’re fighting or he’s asking for more or threatening to file himself, well, maybe you do. Maybe you’d both have some peace from knowing that either you’d had a chance to get custody in writing or, alternatively, that a judge (probably along with a Guardian ad litem) had a chance to formally decide custody for you.
There’s generally no need to poke the bear if things are already going your way. But, then again, if they’re not, maybe you do want to file for custody and visitation. There are no hard and fast rules, but it’s always a good idea to talk to an attorney to get a better sense of your situation and what might be most appropriate in your circumstances.
For more information or to request a copy of our custody guide for Virginia moms, give our office a call at 757-425-5200.