Physical Custody in Virginia

There are always lots of fights over custody and visitation. I imagine, to some extent, that there always will be, because parents who separate after having children typically do so because of substantial compatibility issues. Wherever there are compatibility issues, there are often big differences in philosophies when it comes to raising children.

To some extent, all parents have that kind of problem. After all, we’re none of us exactly the same as our children’s other parent, nor did we have the exact same upbringing, education, or various life lessons. Our most formative experiences growing up aren’t things that we shared (in most cases) with the father of our children, and vice versa.

But that’s neither here nor there. Suffice it to say that men and women, or men and men and women and women, raise children differently, because we all have different opinions, beliefs, and goals. Mostly – though not always – we’re also all trying to do the best we can.

There are also a lot of misunderstandings when it comes to the vocabulary of custody. Specifically, as we try to figure out what we’re fighting for, there are some times misconceptions. I talk about it a lot, but still, if you’re new to the custody debate, you’re probably trying to get to the root of a lot of these questions.

The other day, I wrote about legal custody which is, essentially the right (or obligation?) of two parents to collaborative regarding the upbringing of their children in three key areas: (1) non emergency medical care, (2) religious upbringing, and (3) education. Legal custody is almost always awarded jointly between parents, because making these decisions is important, and no one parent should be able to make these decisions alone. (That is the court’s perspective here, mind you.)

Oh, sure, sometimes legal custody is awarded jointly to one party or the other, or I’ve seen and heard about the isolated agreement where one party or the other is given a tiebreaking vote (though, to be sure, that seems to undermine the whole ‘joint’ thing, if one party can just go ahead and do whatever he or she wants anyway), but mostly it’s something that two parents have to work on together. It’s not easy, sometimes. But its also a fairly settled area.

Physical custody, on the other hand, is where the majority of custodial disputes arise, because it’s where we start to discuss where and how the child will spend the majority of his or her time. Mostly, when we’re talking about custody disputes, that’s what people are concerned about. Specifically, where will the child live? How much time will he or she spend there?

Now, that’s a dispute, because instead of the whole ‘will he go to private or public school’ debate, which is often more or less established fairly early on, the ‘where will he live’ discussion is one that could evolve over time. It’s also more of a win/lose proposition – or, at least, its often perceived that way.

There are essentially three different kinds of physical custody: primary physical, shared physical, and split physical.

Primary Physical Custody

Primary physical custody is a custodial arrangement where the non custodial parent – the parent who has the child less – has 89 or fewer days in a calendar year.

It doesn’t matter, under this arrangement, whether the non custodial parent takes zero days or the full 80. Child support is at the maximum level allowed by statute, with no reduction taken for the amount of time the non custodial parent actually exercises.

This is often viewed as a “win” in mom circles, because it means that the custodial parent has the majority of the time. Lately, though, I think the dialogue has shifted and evolved some to favor a more egalitarian approach to parenting – both for the sake of the children involved (because it’s good for them to see dad as a caretaker, and not so much as a gendered role for women specifically) and for the sake of the mother (her career, health, well being, balance, love life, etc). Though many moms get – and want! – primary physical, I don’t want to suggest that this is what ‘winning’ looks like, or that a shared physical arrangement is ‘losing’, because it’s not. (Definitely read this article – custody for feminists!)

Most of the time, though, these days primary physical is achieved by agreement between the parents. Under the new laws, the courts have to consider all forms of custody equally, which has led to a rise in shared custody arrangements.

Shared Physical Custody

Shared physical custody does not assume a 50/50 split – but that’s a common misconception. Shared physical custody is anything where the non custodial parent has 90 or more days in a calendar year, but it’s based on a sliding scale – it can range anywhere from the minimum 90 to an arrangement where the year is split.

And a split can look very different, depending on how you do it – it could be week on/week off, it could be 4-3-3-4, or literally any other arrangement that you can come up with. If you find yourself in court, you’re likely to find yourself with something that isn’t particularly creative (like week on/week off), mostly because the judge can’t devote tons of time to coming up with custom custody orders. In an agreement, though, you could craft it however you wanted.

Make no mistake, though, the new rules just require that all forms of custody be equally considered – it does NOT make shared custody a mandate, or a primary consideration. We do see more and more courts ordering it, and parents agreeing to it, but that’s not necessarily a function of it being required.

It does come with a reduction in child support based on the number of days the non custodial parent has – the more time, the more support goes down. But don’t make the mistake of thinking that means that you will necessarily receive less, especially if your custodial arrangement allows you to work and earn more. When you meet with an attorney, go over different custody arrangements, and compare them with what you might receive in different situations – if you can work more, if you can go back to school, etc. Often, I find that when a mom earns more, especially if she has childcare, it’s not actually LESS in child support than she’d receive under primary physical custody. (Not to mention the impact of earning more – more retirement savings, more college savings for the kids, etc.)

Split Physical Custody

Split physical custody is unusual, because it describes a parenting plan that involves different custodial arrangements for different children. Though a judge could award split physical custody, it’s most often the result of an agreement between the parents.

Regardless of what custodial arrangement you are ordered by the judge or agree to follow, the “best interests of the child” factors are used. Not only that, but your custodial arrangement is modifiable based on a material change in circumstances.

Ultimately, custody is not so much a win or a lose proposition. If you feel that way, I think it’s probably a good idea to examine those feelings in detail, and discuss your concerns, limitations, or ideas with a divorce and custody attorney who can help you try to craft an arrangement that suits your family’s needs.

For more information, or to schedule a consultation, give our office a call at 757-425-5200. You’re doing the right thing, trying to learn about custody. In the meantime, I definitely suggest that you download our free custody book for Virginia moms!

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