Virginia Shared Child Custody

Posted on Aug 3, 2022 by Katie Carter


There is nothing quite as difficult as determining custody and visitation. As a mother myself, I can completely understand. When you’ve never had to divide your time with your children; when there never was ‘his’ time and ‘her’ time before, grappling with this new kind of divide can be incredibly difficult. How do you even begin to know what that should look like?

Will you be able to be the kind of mom that you want to be? Will your child’s father be able to take care of the children’s needs without you there to remind him of them? Does he REALLY want more time with them, or is he deliberately trying to minimize the amount of child support that he will have to pay? Will he just shuttle them off to someone else, like his mom, to take care of them during his parenting time?

In a lot of ways, there are always just going to be some unknowns at the beginning; you’re going to have to work through it together. I know you’re not ‘together’ anymore, but in the sense that you have children together, there’ll always be a need for the two of you to maintain open communication, at least for the sake of coparenting. That’s not possible? Well, that happens sometimes, too – in which case, you may want to learn a little more about parallel parenting.
I know this probably isn’t what you envisioned, and you could drive yourself crazy with all the ‘what ifs’, especially at this stage. But the best thing you can do now is really to deep dive into your potential custody and visitation arrangement, and come up with something that works for the two of you.

Keep in mind that, whatever you do, it’s not set in stone. Custody, visitation, and child support are always modifiable later based on a material change in circumstances, so it’s not like you’re locked in to this arrangement forever if it doesn’t work.

But what’s the law with respect to custody and visitation?

Well, the law has changed in recent years. Specifically, the Code of Virginia says that a judge determining custody and visitation has to consider all types of custody – primary, shared, and split physical custody – equally.

The statute doesn’t really give weight to one type of custody over the others, but the practical implication (most attorneys would agree, I think) is that shared custody has taken on more of a central role in disputed custody cases. It’s important to remember that shared doesn’t assume a 50/50 split; shared custody is where the non custodial parent (the parent who has the child or children less) has 90 or more days in a calendar year. It’s shared custody if the non custodial parent has 90 days, and it’s shared custody if the non custodial parent has 182.5 days in a calendar year.

Depending on how much time each parent has will impact how child support is calculated. Under a primary physical custodial arrangement, it doesn’t matter how much time each parent has – whether dad takes 89 days or is a total deadbeat who never sees the child, child support remains the same. Under shared physical custody, child support is determined on a sliding scale. The more time he has with the child, the less he’ll pay in support.

Shared custody is not required to be awarded, but it often is – especially in contested cases. So, it’s a very real possibility, and something that you should at least contemplate.

But what if my child’s father has never had the child alone before? He wouldn’t know what to do with shared custody!

Unfortunately, it’s pretty common that dad hasn’t stepped up and occupied an equal caretaking role with the mom up until the parties specifically handle custody.

It doesn’t really matter why. Chances are good that, if he expresses to the court that he wants the opportunity to have that parenting time (you know, and there’s not, like, a violent criminal conviction in his record), he will have an opportunity to at least try. That’s why custody and visitation is modifiable, after all – if it doesn’t work out, once there’s a material change, you could petition and change custody and visitation.

I think the general feeling is that, when dads are given the opportunity, they’ll take it – and that’s what’s best for kids. Maybe he should have done it before, but the court won’t really (in most cases) hold that against him. The court will give him a chance to improve things and to parent his children. Not because HE deserves it, but because the children deserve to have both parents. (This isn’t necessarily my opinion here; I’m just explaining the way the court often sees things.)

But what if my child’s father won’t really care for the kids? What if he’ll shuttle them off to someone else, like his mom, to take care of them?
That’s the worst! It does happen, too. In most cases, I recommend a first right of refusal to combat something like this. That way, if he does shuttle the kids off, he at least has to offer them back to you before he does so.

But what if he doesn’t exercise his time? He’s supposed to pay less in child support, but he doesn’t exercise his parenting time!

Document, document, document! This happens, too, and it’s awful. But when you petition for a change in custody, I’d want to make sure I had documentation that reflected how much parenting time he gave up.

Ultimately, it’s frustrating in the short term, but it gives you a really strong set of arguments for why you should have more parenting time in the future. Just make sure you log it all, so you can reference the specific dates and times.

Unfortunately, no divorce action or custody petition ever made a man a better man or a better dad. He is who he is, and you probably know that better than any attorney, Guardian ad litem, or judge could ever know. If he’s going to try to weasel out of his responsibilities, or pretend that he’ll take more parenting time in an attempt to pay less in child support, well, make sure you’ve got it all documented.

Keep in mind, too, that shared custody does not mean you’ve lost custody, and it does not mean you’re a bad mom.

We’re our own harshest critics. And, while I think it’s fair to say that there was a time that the court preferred mom in custody and visitation cases, I do think that time has passed. If you wind up with shared custody – and so, so, so many do – please don’t take that as a ‘loss’ or as an assertion that you’re a bad mom. You’re not. The court doesn’t think that. I don’t think that. I KNOW you’re a good mom, and that you’re trying to do all you can. The court just believes that the best thing for children is to have time with both parents – you know, in most normal circumstances where you have two parents who are flawed but fundamentally well meaning (which is to say – most cases).

This is not a punishment. It is not a loss. It is a reflection of how standards have changed in society, and how we want children to have access to both parents. It is not because you are less important. You’re mom – and there’s no more important job than that.

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