Oh, no! Not Shared Custody!

One of the things that scares many of my clients the most is the possibility that they will be awarded shared custody. It’s true–the presumption that automatically favored moms is changing, with many judges favoring a custodial arrangement that allows both parents to spend time with the children, especially in cases where dad contests the custody arrangement.

In many cases, husband and wife are able to agree to a custodial arrangement in their separation agreement. Many of these arrangements follow the typical pattern–with husband (as the typical non-custodial parent) having every other weekend, one weeknight evening, and a block of time (usually 2-4 weeks) of uninterrupted time in the summer. Of course, this arrangement presumes that we’re working with school-aged children, and it’s not unusual that if we’re dealing with infants or toddlers that a different custodial arrangement is used (more frequent visits of a shorter duration, designed to expand as the child gets older).

If husband and wife can agree on a custody and visitation arrangement, that’s ideal. Of course, it’s not always easy to let go of time with your children, particularly when he starts talking about wanting large blocks of time in the summer and alternating holidays. The first Christmas alone is a major blow for many women.

Many women passionately resist shared custody. In Virginia, shared custody happens when the noncustodial parent (by default, I will refer to him as ‘dad’) has more than 90 days with the children. A day is defined as a 24 hour period, including overnight. If he has the children for overnight but not a full day, that can be counted as a 1/2 day. One of the reasons many women resist shared custody (and why many men insist on shared custody) is because it reduces the amount of child support the custodial parent receives.

Let me explain. In a primary physical custody situation, you get the same amount of child support whether you’ve got a dad who sees the child one day a year, or whether he sees the child 89 days a year. In a shared custody situation, child support is based on a sliding scale, depending on how much time dad spends with the child. So, you’ll get more child support if he spends exactly 90 days with the child than if he spends, say, 180 days with the child. In shared custody cases, your support is entirely dependent on the amount of time each of you spends with the child–and, theoretically, that’s because dad is responsible for more of the day-to-day expenses if he’s spending more time with the child.

In contested cases, where husband and wife can’t agree and the custody and visitation issue goes to court, the judge is more likely to award something closer to shared custody than primary physical custody. In Virginia Beach, there is at least one judge who favors week on/week off custody, though that is not currently the norm.

You should also know that there is no statutory presumption that shared custody must be awarded–it keeps coming up, but the legislature keeps rejecting it. There is nothing legally that mandates that you and your husband must share custody of your children.

The bottom line is that most custody and visitation cases are settled out of court between husband and wife. Most of the time, these custody and visitation arrangements follow something similar to the traditional schedule we discussed earlier and allow mom to have primary physical custody. There are also a fair number of cases where husband and wife agree to share custody on a more equal basis.

In contested custody cases, however, it is reasonable to expect that the judge will award you something more similar to shared custody.

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