Why You DO Need a Custody and Visitation Agreement in Your Virginia Divorce

Posted on Dec 23, 2013 by Katie Carter

If you and your husband are facing a divorce, you’re probably nervous about sharing the children by a certain schedule. In fact, if you’re like most moms, you’re unwilling to reduce parenthood to a specific schedule. “We’ll just work together and figure it all out,” they tell me, optimistically. “A set schedule is just too restrictive,” they say. “We handle it now without a custody and visitation order in place, so I’m sure that after the divorce we’ll be able to work it out,” they insist.

Don’t assume that, after the divorce, you’ll be able to just “work out” a custody and visitation arrangement.

As far as custody and visitation go, you should never, ever assume that you and your ex husband will just be able to “work it out.” Custody is often the most emotionally charged issue in divorce, and even totally reasonable people can find it incredibly difficult to reach a decision regarding how the children should be shared. Add in a holiday, and an unspecified visitation schedule is a recipe for disaster.

The truth is that setting a schedule for custody and visitation, though difficult to contemplate, is one of the biggest protections you can afford yourself. It may sound cold, calculating, and insensitive to reduce your parenting responsibilities to a schedule in a legal contract. It may sound restrictive to think that your time with your own children will be dictated by a previously agreed upon schedule that allocates certain things to you in odd versus even years, regardless of the circumstances surrounding that particular point in all of your lives. It may sound inconvenient to know that, at least for the foreseeable future, you’re going to have to be home at 5:00pm every single Friday night so that your ex husband can pick up the children for visitation. Having a schedule is probably all of those things—cold, calculating, insensitive, restrictive, and inconvenient. It is also incredibly important.

Why? Well, you have to remember that everything relating to the children (custody, visitation, and support) is always, always, always modifiable based on a material change in circumstances. So, you’re probably thinking, “What’s the point in painstakingly setting out a schedule for custody and visitation if it can be changed later?!” While it’s true that it can (and probably will) be changed, so that the terms of your custody and visitation arrangement are appropriate for your child at many different stages of development, it’s still a protection to have some kind of arrangement in place.

If our custody and visitation schedule is modifiable anyway, why is it so important?

Think of it this way: Things between you and your soon-to-be ex may be fine now, but circumstances can change down the road. Whether the divorce brings up some ill-feelings between the two of you or things change later on down the road (think: remarriage), you can’t always assume that your relationship will be easygoing and cordial. If the divorce has been easy, chances are that things will smooth over later on, but you can never be sure.

A big part of the reason you pay your attorney is so that you can minimize the unforeseen problems you might have later on. If you think that you might be better off without establishing a specific custody and visitation schedule, think again. Even though I know that your intentions are good, good intentions can backfire later. Where your children are concerned, you really don’t want that to happen.

The Virginia Code specifically provides that custody decisions should be made based on what is in the “best interests of the child,” and provides ten factors that help provide guidance to the court (and attorneys and parents) about what is in a child’s best interests. The best interests of the child is a tricky thing to determine and requires a complicated weighing of a number of different things. For many mothers, their downfall comes with factor number 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.

Simply put, you don’t want to put yourself in the position of having to defend your decisions with respect to when your child’s other parent had visitation. Without establishing a set custody and visitation schedule, the two of you will have to talk it over among yourselves and agree. So long as things are peaceful and harmonious, that’s fine. But the minute something bad happens, you may find yourself in hot water.

What you DON’T want to happen is to have your child’s father telling the judge that you unreasonably denied visitation by not letting him have the child at this time or that time. These “he said/she said” fights are difficult for everyone involved. What’s the worst case scenario? Sometimes, judges order a complete change of custody as a result of one parent’s unreasonable denial of visitation to the other.

This factor is particularly important, because judges in Virginia believe very strongly that it is in the best interests of the child to have involvement from BOTH parents. Any parent that makes this difficult is in danger of losing custody.

A custody and visitation order would provide you a certain measure of protection, because your child’s father would have had to have agreed to it. If the two of you sat down together and came up with a schedule that seemed reasonable to the two of you, it would be much, much more difficult for him to argue later that you unreasonably withheld the child(ren) from him. Having an agreement already in place protects you from uncertainty, which can ultimately lead to additional litigation.

A little advance planning now can prevent expensive and upsetting litigation later.

It’s important for your divorce to give you and your ex husband order and structure. Knowing ahead of time exactly what you can expect in terms of custody and visitation can set you up for a more successful divorce. If your custody and visitation schedule is “loosey goosey,” you’re more likely to go into it with different expectations. Maybe you think that you’ll keep the kids most of the time and give him permission to take the children to do certain things. Maybe he, on the other hand, thinks that this means something very close to sharing the kids 50/50. Forcing yourselves to talk through these preconceived notions, though it may seem difficult at first, ensures that the two of you come to the divorce with a similar frame of mind.

But what if I don’t want to give him too much time because I’m afraid he won’t bring the kids back?

In the most contested cases, established custody and visitation arrangements are especially important. A lot of moms think that, by refusing to agree to a specified visitation schedule with their soon-to-be ex husbands, they are somehow giving themselves more control over when, where, and if visitation should take place. They think that because they can say, “No, I’m sorry, but this weekend really isn’t a good time for us,” that it will be easier. They’re worried that, if their child’s father has too much freedom, he’ll take the kids and refuse to bring them back.

Remember what I said about Factor 6? The court is absolutely going to look at whether you have actively supported your child(ren)’s relationship with the other parent. If your child’s father files a petition arguing that you have unreasonably denied visitation (especially if there’s some truth to that), you’re in a dangerous place.

Besides the fact that you would like to avoid additional litigation, having a custody order in place provides you a measure of protection against parental kidnapping. The thing is, though, there is no such thing as parental kidnapping unless there’s a custody order in place. Think about it: before you decided to divorce, you shared the kids together without a specific schedule. You took one to soccer while he drove another to ballet. You took the kids to visit your mother in Florida over the summer and he took them for a fishing weekend. It wasn’t kidnapping, because, as parents, you have the right to take your kids to do these sorts of things. When do you lose that right? When you’re doing something that violates an order.

If you don’t have a custody order in place already, there is no way you can prove (to the courts or to the police) where the kids were supposed to be and when. There’s nothing that differentiates your time from his time. If you continue on without an agreement regarding custody or visitation, then there’s nothing to enforce if your child’s father doesn’t do what he says he’s going to do.

Ultimately, in most cases, parental kidnapping is really not an issue. More than anything else, it’s a deep-rooted fear. But the one way to alleviate the stress of that fear is to remove it as a possibility completely by establishing a custody and visitation order that allows each parent a certain amount of time with the child(ren).

The bottom line: You really do need a custody and visitation agreement in place.

Having a custody and visitation arrangement already established between you and your child’s father can make things a whole lot easier later on down the road. It can help establish a realistic way to share your responsibilities with respect to the children and can even help to manage the relationship between you and your child’s father—both of which are important goals.

Knowing what to expect and being able to rely on it makes co-parenting easier after the divorce, and a big part of that comes from taking the time to organize and structure custody prior to the actual divorce. As far as your children go, having an agreement in place is one of the biggest forms of protection you can afford yourself under the law. Sure, it would be nice if you could just always share custody without an agreement, but, in my experience, very few (if any) people actually can do that. Divorce creates an emotionally charged situation, especially where children are concerned, and though the stress tends to die down as time goes on, it’s best to add that little extra insurance to make sure that things are as harmonious as possible.