Custody in separate homes

At some point, after you and your child’s father call it quits, you’ll live in separate homes. In some ways, that makes custody of the child you share more difficult. In other ways, though, it lightens the burdens on you both.
If you and your child’s father have just recently made the decision to separate, it’s daunting to think about the two of you living further apart than you do. Not so much because of each other, of course, (after all, you made the decision to end your relationship), but because you worry about what that means for custody of your child.
You know that your child’s father deserves (and will get) some time with the child. You know that, once the two of you no longer live in the same home, the time that dad gets with the child will be time where you’re no longer included. That’s a scary and uncomfortable feeling that has probably left you feeling like you’re losing control.

So, what do you need to know before you begin to share custody in separate homes?

A woman asked me the other day whether it was possible for both parents to have primary physical custody of a child when they lived in different homes. I think that this question stems mostly from confusion about how custody is handled in Virginia, so I want to take a few moments to explain to you the different types of custody and how it is typically awarded.

Legal versus physical custody

In Virginia, when we’re talking about custody, we’re talking about two different things: legal custody and physical custody.
Legal custody refers to the right of the parent to make three types of decisions on behalf of the child: non emergency medical care, religious upbringing, and education. Legal custody is almost always awarded jointly between the two parents because, as the court sees it, these rights are so critical to parenthood that it couldn’t really (without very good cause) exclude one parent from the right to make those types of decisions.
Physical custody, on the other hand, is probably what you’re concerned about, because physical custody has to do with where a child spends his or her time.
Physical custody can be handled in a couple of different ways. It can be primarily awarded to one parent, shared between both, or, if there is more than one child, split (with one parent taking one child the majority of the time, and the other parent taking the other).

Primary physical custody

Primary physical custody happens when the non custodial parent, the parent who has the child less, has 89 or fewer days with the child in a calendar year.
With primary physical custody, the custodial parent (the parent who has the child more) receives the maximum amount of child support.
Primary physical custody can’t be shared between two parents, because it automatically assumes that one parent has fewer than 89 days.

Shared Physical Custody

In a shared physical custody situation, on the other hand, both parents share time with the child. To define shared physical custody, I would say simply that the non custodial parent has the child for 90 or more days in a calendar year. That can mean that dad (assuming he’s the non custodial parent) has just 90 days, but it could also mean that dad splits the year with mom and has 182.5 days. It really all depends on what the parents are able to agree to or what the judge might award.
I’m pretty sure that this is what that mom was asking me. Not so much that she and her husband both wanted primary physical custody, but that they both wanted equal roles in the care and upbringing of the child. If so, shared physical custody is what they’d want.
In a shared physical custody situation, child support is calculated based on a sliding scale. The more time the non custodial parent has with the child, the less child support he (again, assuming it’s dad) pays.
These days, we see more and more cases where shared custody is either awarded by the judge or agreed to by the parents. Why? Well, for a lot of reasons, but mostly because both mom and dad would like to be involved on a bigger scale.

Split Physical Custody

Split physical custody is never ordered by the judge; it is an agreement that the parents reach because they feel that, in their particular circumstances, it is warranted.
So, yes, although most families do wind up living in separate homes after mom and dad are no longer together, that doesn’t mean that both parents can’t have an active role in their children’s lives.
Of course, geography does often have an impact on custody and visitation—because, as you can imagine, depending on how near or far you live from each other, different custodial arrangements might need to be made.
For parents that live near each other, it’s possible to have week on, week off custody if you want. It’s possible to alternate in the middle of the week, and switch the kids on weekends. It’s possible to split the day on Christmas, if you want, too. There are a lot of possibilities for parents that live near each other.
When relocation is an issue, flexibility becomes more difficult. You can’t have week on week off custody if you don’t live near the same school district. If your children have to fly for visitation to take place, you may find that the cost of exchanging the children (particularly if you have to fly to accompany them) makes frequency a problem. For families who live geographically far from each other, custody is often shared in larger chunks of time. One parent may get the majority of the school year while another gets a big chunk of the summer and the majority of the holidays.
While it is certainly possible to share custody living in separate homes (and, of course, most separated parents do), how far apart you actually live will dictate what type of custody and visitation arrangement might be appropriate in your case.
For more information, or to schedule an appointment with one of our attorneys, give our office a call at (757) 425-5200.

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