Understanding custody cases has a lot to do with understanding the vocabulary of custody cases. It’s not very complicated, but learning about custody vocabulary does require a little bit of background information before you can quickly and easily understand exactly what’s happening in your case—or what you’re even asking for!
Most people talk about custody as something that is either won or lost; there’s no gray area. That’s just not accurate or realistic! In most cases, both parents are reasonably good parents who genuinely want the best for their child(ren). Whether or not the romantic relationship worked out between mom and dad, they love the children and want to spend time with them.
In extreme cases, where there’s physical, emotional, or sexual abuse, these generalizations don’t apply. If your case falls into one of these categories, you may find helpful information in this article, but you’ll definitely want to talk to an attorney immediately to begin to develop a comprehensive plan to protect your children.
Still, even in a “normal” situation, we find that most moms feel a little panicked about the idea of determining custody. Even if dad is a pretty good guy (though maybe not an awesome husband or boyfriend), it’s terrifying to think that a court order or signed agreement will dictate the choices you make as you raise your children. There are very few things as emotionally driven as a mom’s relationship to her children, and it’s understandable if you’re freaking out a little at the thought.
Before you panic too much, let’s discuss the vocabulary of custody cases to give you a better idea of exactly what the court (or you, if you negotiate an agreement) would be deciding—and, even more importantly, what it might mean for your relationship with your child.
Legal and Physical Custody
A lot of times, when moms first come in to my office, they tell me that they want “full custody.” What they mean, mostly, is that they want the child to live with them. Some of them are a little more extreme, and what they mean is that they want the child all the time, without having to answer to their child’s father about their choices at all.
It’s important to know the difference between legal and physical custody, because they’re different. Legal custody refers to the rights of parents to make 3 types of decisions on behalf of the child: (1) non emergency medical care, (2) religious upbringing, and (3) education. In most cases, judges award joint legal custody because they believe that the right to make decisions about these 3 things are absolutely critical to the ability to parent your child. Because two parents cooperated to bring about the child, two parents have to cooperate with respect to the decisions about raising the child.
In rare cases, sole legal custody can be granted to one parent or the other. It doesn’t happen often, unless one party just agrees (in writing) to give up legal custody, but it CAN happen. Most of the time, when legal custody is taken away from a parent, it’s because of abuse, like when parental rights are terminated, or for a short term. Sometimes, especially when we have a military parent, they’ll delegate sole legal custody to the other parent for a short period of time, like during deployment. Joint legal custody then resumes once deployment ends, and the two parents make decisions together from that point onward. It doesn’t always work that way, though; not every military dad or mom is willing to give up joint legal custody while they’re on deployment. It’s just something that happens sometimes, in certain limited situations. Legal custody can be either sole or joint, and is almost always awarded jointly.
Physical custody, on the other hand, refers to where the child spends most of his or her time. Most of the time, it’s physical custody that parents are really fighting over, because they want the child(ren) to live with them. Physical custody can either primary, shared, or split.
Primary Physical Custody
In a primary physical custodial relationship, the non custodial parent (the parent who has the child less) has 89 or fewer full days (defined as a twenty four hour period) with the child in a calendar year. The non custodial parent then has visitation with the child. (Sometimes, in an effort to be as polite and respectful as possible, attorneys call it ‘parenting time’ instead of visitation. It means the same thing, though.)
Just for reference, it falls under primary physical custody in the traditional custodial relationship: every other weekend, alternating holidays, and two weeks uninterrupted time in the summer.
Shared Physical Custody
In a shared physical custody relationship, the non custodial parent (the parent who has the child less) has 90 or more days with the child in a calendar year. Unlike in a primary physical custodial situation, child support in a shared physical custody situation changes depending on how much time the non custodial parent has with the child(ren). The more time the non custodial parent has, the less he is responsible for paying the custodial parent (the parent who has the child more) in support. It’s a sliding scale. In a primary physical custodial situation, on the other hand, child support remains the same whether the non custodial parent spends 89 full days with the child or not a single one.
Split Physical Custody
Split physical custody happens when there’s more than one child, and some go with one parent, and others go with the other parent. (Remember the movie The Parent Trap? Just like that.) Before you get alarmed, though, take a deep breath. Split physical custody is not something that judges award; it’s something that parents agree to do in an effort to provide a family environment that is most suitable for their family. It’s just there as a possibility, but it’s not something that a court forces on a family.
The Ten Custody Factors/Best Interests of the Child Factors
The court makes decisions about custody and visitation based on the “best interests of the child.” But what does that mean? How can a child’s best interests effectively be determined? Most courts have some version of best interests of the child factors, though they may vary from state to state. In Virginia, we have ten factors that inform the court about what type of custodial situation might be in the best interests of a child. The ten factors are as follows:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
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;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
If you’re facing a custody case in Virginia, you should read, know, and love the ten best interests of the child factors—because your case should be based around them. Whether you’re representing yourself or are hiring an attorney to represent you, you should be prepared to discuss each factor at length, with an emphasis on how your parenting style addresses each concern. (Note specifically factor number 6, which is often referred to as “the mom’s downfall.”)
Mediation, Negotiation, and Litigation of Custody Cases
Custody cases can be determined in a lot of different ways. If things are relatively settled and amicable between you and your child’s father, mediation or negotiation might be a possibility. If, on the other hand, you and your child’s father have difficulty agreeing that the sky is blue, litigation may be your best (or, at any rate, most realistic) alternative.
Sometimes, custody disputes are settled by mediators. Mediators are trained professionals whose job it is to help people reach an agreement. In most cases, mediators aren’t attorneys but, in any case, you don’t hire a mediator to act as your attorney. It is not a mediator’s job to advise you on your rights, or to tell you what you might get if you were to take your case in front of a judge; it is simply the mediator’s job to help the two of you reach an agreement.
Mediation can be a great way to reach a (relatively) quick, easy, and inexpensive solution, without all the trouble associated with going to court. Still, there are definitely some dangers when it comes to mediation; specifically, there’s a risk that you’ll agree to less than the law would give you or that the judge would have sided with you over your child’s father.
In most cases, we recommend that moms who are interested in deciding custody using a mediator meet with an attorney beforehand, just to make sure that they know what they’re asking for going in. Additionally, it’s not a bad idea to meet again with an attorney after meeting with the mediator but before signing anything, just to make sure that the agreement says what you think it says and doesn’t leave room for question later on down the road. (After all, one of the most important reasons behind having an agreement is to keep you from having to go to court later on down the road, too.)
Just like you can “mediate” your custody arrangement with a mediator, you can also “negotiate” an agreement with an attorney. Instead of hiring a mediator, who would be shared between the two of you, in a negotiation with an attorney, you each hire your own attorney. It is the attorney’s job to take your side, to advocate for you, and to provide you advice about whether any offer you receive is a good one (or whether you could possibly do better in front of a judge).
You can negotiate and sign an agreement regarding custody and visitation without having to go to court, so, if it’s possible, that might be ideal.
The major advantage of both negotiation and mediation is that you have a great deal of freedom in what you decide to do. You can craft an agreement that starts out narrower while the child is young, and expands as the child grows older. You can divide the holidays you want to divide, and take into account certain things that are specific to your family. If your child’s father’s family does an annual week in the Outer Banks, you can provide for that, just like you can provide for your family’s Fourth of July festivities. Whatever is unique and specific to your family can be handled uniquely and specifically in your agreement.
When you litigate custody, you put on your case and ultimately let the judge decide. Most people view litigation as a last resort, mostly because it costs so much money and takes so much time to actually get to court. Not only that, but there’s a lot less freedom when you’re determining how custody and visitation will be handled. You won’t be able to carefully and specifically craft an arrangement that takes everyone’s interests into account; you’ll be told what to do instead. Of course, it can be modified later (as long as you can demonstrate that a material change in circumstances has occurred), but it can be a pain in the butt in the meantime.
Many people have to rely on litigation to help them resolve their custody cases because agreement is not an option. In an ideal world, though, you would probably prefer to just settle things yourself.
Guardians ad Litem
A Guardian ad Litem (or GAL, as they’re commonly called) is an attorney appointed to represent the interests of the child(ren) to the court. Since kids are rarely called into court and asked to testify (mostly because it’s very damaging for a child to feel like he has to testify ‘against’ one or both of his or her parents), a GAL can talk to the children outside of court and present recommendations to the judge. Usually, Guardians ad litem are relied upon pretty heavily by judges.
A GAL can be appointed by the court or agreed upon by the parents. At the juvenile court level, the GAL’s fees are often paid by the state. At the circuit court level, however, the parents are responsible for paying the GAL’s fees (which, since the GAL is a lawyer, can be upwards of $300 an hour in our area), regardless of whether they agreed to have a GAL appointed at all.
As you can imagine, it’s pretty scary to have a GAL. They usually meet with the parents, talk to the child(ren) in question, and also visit the home. They have elaborate questionnaires, and give very few answers. Since they represent the child (and not the parents, even though the parents pay the bill), it’s a pretty uncomfortable situation for many parents. Still, you should know that a GAL is a possibility if your case is litigated.
Custody cases are a lot easier to understand when you know the vocabulary. For more information about custody cases, whether it might be possible to represent yourself in a litigated custody case, or to talk to an attorney one on one about your unique case, give our office a call at (757) 425-5200.