In Virginia, when we talk about child custody, there are two different categories of custody that we discuss: physical custody and legal custody. Legal custody refers to the right of a parent to make decisions on behalf of the child. Physical custody, on the other hand, has to do with where the child spends the majority of his or her time. In most cases, it’s physical custody that parents are fighting over in court because the parents are concerned primarily with where the child will live and how much time each will have to spend with the child. For the parent without physical custody, visitation is what determines how and when a parent can see the child.

Legal Custody in Virginia

Legal custody refers to the right to make three different kinds of decisions on behalf of your child: (1) non emergency medical care, (2) education, and (3) religious upbringing. Legal custody can be either sole or joint. Sole legal custody means that you can make major decisions that impact the child’s life without input from the other parent. Sole legal custody is incredibly, incredibly rare because most courts view the right to make decisions about these three things as absolutely critical.

Joint legal custody, on the other hand, means that the parents are expected to discuss major decisions and reach a consensus.

Under Virginia law, there is no presumption of preference for joint or sole legal custody; it is up to the discretion of the judge to decide whether to award joint or sole legal custody. The majority of judges, though, tend to prefer to award joint legal custody to both parents, because they believe that the right to make these decisions is pretty fundamental. Not only that, but the Virginia courts really encourage the active involvement of both parents in a child’s life.

In some cases, though, sole legal custody may be the only appropriate arrangement. It doesn’t happen very often, but when a judge is faced with a difficult situation, like domestic violence or parents who can’t stop arguing, sometimes sole custody is awarded.

Physical Custody in Virginia

Physical custody refers to where and with whom a child lives. There are a number of different ways physical custody arrangements can be structured. Usually, we see primary physical custody, shared physical custody, or split physical custody.

Primary Physical Custody

Primary physical custody means that the child lives primarily with one parent and has visitation with the other parent. The “primary physical custodian” (the parent who has the child most) has primary physical custody, and the non-custodial parent (the parent who has the child less) has visitation with the child, usually according to a specific and detailed schedule. In a primary physical custodial arrangement, the non-custodial parent has less than 90 days (a day is defined as a 24 hour period) with the child in a calendar year.

In a primary physical custody situation, child support is determined by the traditional guideline figure, and it doesn’t make any difference whether the non-custodial parent spends 0 days with the child or the full 89—the child support figure is the same. It’s based on a formula, and takes into account both parent’s incomes (spousal support that you receive, if any, is included here), any child support being paid for the benefit of children fathered in other relationships, the cost of the child’s medical insurance, and the cost of work-related childcare.

If you have the stereotypical “every other weekend, Wednesday night dinner, and two weeks in the summer” custodial arrangement, you’re definitely in primary physical custody territory. It used to be that primary physical custodial arrangements were the most common, but these days we’ve seen some Virginia judges gradually lean towards shared physical custody arrangements instead.

Shared Physical Custody

Shared physical custody is a custodial arrangement where the non-custodial parent has over 90 days with the child in a calendar year. It doesn’t mean that custody is shared 50/50. On the contrary, shared physical custody can be any custodial arrangement where the non-custodial parent has at least 90 days in the course of the year. (For those of you who prefer not to do math, if your child’s father has 90 days of parenting time with the child in the course of the year, you still have 275 days.)

Of course, shared custody can be shared 50/50, it just doesn’t have to be. It is absolutely possible for both parents to have exactly 182.5 days each in a year, and it does sometimes happen. It is up to the parents to decide what kind of custodial arrangement works best, and how that custodial arrangement will actually be executed. For example, it’s possible for some parents, who live very close to each other, to share custody from week to week.

For parents who live further away (or who find the idea of constantly shuttling the child back and forth between the two homes repugnant), it may not be possible to have week on/week off custody. In those situations, we often see day-to-day arrangements that look a lot like the primary physical custody arrangements, but with the non-custodial parent receiving a much larger block of time in the summer. It’s not uncommon for the non-custodial parent in a shared custody arrangement to receive 8 or 10 weeks in the summer.

As far as child support goes, shared physical custody definitely has an impact on how much you’ll receive, and it works differently than it did when we were talking about primary physical custody. When there is shared physical custody, the non-custodial parent pays less in child support in exchange for having the child more (and, presumably, for paying for more of the incidental expenses during that time). A non-custodial parent who has the child for 90 days will pay more in support than the parent who has the child 182.5 days. For shared physical custody, how much time you have matters, and factors into the calculation.

Split Physical Custody

Split custody refers to a scenario in which parents have more than one child together, and the custodial arrangement is not the same for each child. It would be considered split custody if mom retained custody of one of the children, and dad had custody of the other.

This is not a typical custodial arrangement, and courts do not generally split up siblings. Usually, when split custody is arranged, it is because the parents determined that the arrangement would be the best for their family; it’s very rare that a judge would order split custody, but it does happen. A judge might order shared custody when an older child has a preference to live with a parent other than the one that the judge feels is best for the younger children. It doesn’t happen often, but it’s possible.

Visitation

Visitation, or “parenting time,” as it is now sometimes called, refers to the time that the parent without physical custody spends with the child. It usually includes overnight and extended periods of time spent with the non-custodial parent in his or her home.

Depending on the age of the child and the condition of the parent in question, visitation can be broad or narrow in scope. Sometimes, when we’re establishing a schedule for a younger child, we start out with fewer overnights that expand as the child grows older and extended periods of time away from home become more realistic. Other times, we limit visitation so that it takes place in a certain location or in the presence of certain other third parties to limit the child’s exposure to a parent who is believed to be, for some reason, inappropriate.

Will I lose custody?

When two parents fight over custody of their children, the court looks at the situation and tries to determine what is in the best interests of the children. It is very, very unlikely that, in a normal situation with two otherwise fit parents, one parent would completely lose custody of their child.

These days, the court really emphasizes the importance of both parents having a role in raising the child, and we’re seeing more and more shared custody arrangements. If you and your child’s father are negotiating your own parenting plan together, you’ll have a lot of leeway to determine what kind of custody and visitation arrangement suits your needs (and, of course, the needs of your children). If you can’t reach an agreement and your case gets in front of the judge, it’s probably more likely than not that the judge will order some kind of shared custodial arrangement. That doesn’t necessarily mean 50/50, and it doesn’t necessarily mean week on/week off, but I think chances are very, very good that you’ll be in shared custody territory.

Can I get more child support than the Virginia guidelines?

In Virginia, child support is a guideline figure. It’s based on a specific formula, and there’s very little we can do to massage the numbers in any particular way. Child support is typically not an area where we devote a lot of time an energy, because it really doesn’t make any difference one way or the other.

Child support is supposed to include everything, from what it costs to feed and house the child, to extracurriculars and sports. The judge can deviate from the child support guidelines, but I don’t see it happen all that often. While it’s okay if you want to ask for extra support, you should also keep in mind that it is probably unlikely that you’ll get it.

What if I want to relocate away from my child’s father?

In our area, there are a lot of military families, so when marriages and relationships fail, it’s pretty commonplace that one party wants to move away from the other when things don’t work out the way they planned.

Unfortunately, relocation cases are very difficult to win. The judge can’t tell you that you can’t leave if that’s what you really want to do, but the judge can say that, if you leave, you can’t take your children with you. Like I mentioned before, judges these days really believe in the importance of having two parents available to co-parent, if possible. If your child’s father wants to be a part of your child’s life and opposes your relocation, you’ll have a very, very difficult time convincing the judge that the move is in the best interests of the child.

If it’s important to you to try to litigate on this point, you’ll definitely need to hire an attorney experienced in handling custody cases.

Keep in mind, too, that even if you do win, there may be consequences. In a lot of the cases that I see where one parent or the other has been allowed to relocate, the other parent gets significant blocks of time at other points during the year. I’ve seen situations where dad got the entire summer, every long weekend during the school year, and even certain holidays (like every Thanksgiving). I have also seen the relocating parent be ordered to pay the costs of transportation for the child.

Relocation may be an issue that you’re willing to press, and that’s fine, but you should be aware that (1) it’s not easy, and (2) even if you do win, there can be unpleasant side effects.

I don’t think there’s any doubt that, in most cases, having two active, involved, invested parents is the best thing for most children. After your relationships fails, it can be difficult to imagine the years and years ahead of you that you’ll have to continue to co-parent, but it’s the reality of the situation and one that is better faced sooner rather than later. In almost every case both parents will have time with the child.

For more information about child custody arrangements or to get information about how to establish custody in your particular situation, give our office a call at (757) 425-5200.