Custody & Visitation

Legal decisions and physical custody


Custody cases can come up in a number of ways – sometimes, they’re part of an underlying divorce action. Other times, like when the parents are already divorced or were never married to begin with, custody and visitation can be a standalone action, independent of divorce proceedings.

That can mean that custody cases take different forms, depending on the type of case that’s actually filed.

It’s also important to understand, when it comes to custody, exactly what you’re discussing. The vocabulary of custody isn’t easy to understand, and it’s also a great place to start.

Legal custody

In general, we break custody down into legal and physical custody. Legal custody refers to the right to make three types of decisions on behalf of the child: (1) non emergency medical care, (2) religious upbringing, and (3) education.

Often, though not always, legal custody is awarded jointly between the parties because the court views the right to participate in decisions of this magnitude as incredibly important when it comes to childrearing.

When moms tell us that they want sole custody, most of the time they mean sole physical custody, but it’s still important to understand this distinction, and be aware of exactly what you’re asking the court to do.

Physical custody

Physical custody refers to where the child spends most of his or her time, and it’s broken down into primary physical custody, shared physical custody, and split physical custody.

Primary physical custody

Primary physical custody is a type of physical custodial arrangement where the non custodial parent – the parent who has the child less – has 89 or fewer days in the calendar year. Under a primary physical custodial arrangement, whether the non-custodial parent has 0 days with the child or takes the full 89 days, the child support obligation is the same, and it’s as high as it can possibly be under the formula.

Shared physical custody

Shared physical custody DOES NOT automatically assume a 50/50 split. A shared physical custody arrangement is one where the non custodial parent has the child for more than 90 days in a calendar year. It’s structured on a sliding scale where, depending on the number of days the non custodial parent has (which can be anywhere from 90 days to 182.5 days in a year), the child support obligation can be either higher or lower.

The new laws say only that the judge has to consider all types of physical custodial arrangements equally (meaning that primary, shared, and split physical custody are examined on equal footing and a determination is made about which of those is in the best interests of the child involved in the litigation), but some judges have taken that to mean that they must consider shared physical custody first.

Dads like to push for shared physical custody, too. It’s no secret that shared physical custody comes with a reduction in child support. The theory here is that, if the non-custodial parent is responsible for the children for a greater portion of time, his expenditures as it relates to the children are also greater – more food, more activities, more daily necessities, etc – though that often isn’t the case. (We’ve heard horror stories about dads demanding that moms send formula, diapers, spare clothes, and toys for their parenting time – sometimes, not even returning them afterwards! It may seem petty – until you are the one who has to keep buying things he doesn’t return.)

We see lots of arrangements, but it’s important to remember that different things are appropriate in different cases – whether week on/week off, 3-4-4-3, longer weekends, or even bigger blocks of time (like, 8 weeks out of the summer), depending on how geographically close the parties live and how good their relationship is. It’s always important to demonstrate to the judge that you are capable of co parenting effectively, even if he isn’t (maybe even ESPECIALLY if he isn’t!) – and a parenting education class is never a bad idea!

Split physical custody

Split physical custody is less common than either shared physical or primary physical custody. In a split physical custody situation, each child has his or her own custodial arrangement. It may be like The Parent Trap, where one parent has each child, but this kind of arrangement might be any situation where two or more children have custodial schedules with their parents that do not perfectly mirror the arrangement that their siblings have.

It’s unusual, but it can happen. Most often, judges believe it is in the children’s best interests to be together wherever and whenever possible, but that’s not always the case. We’ve seen it happen both by order of the judge, and also by agreement of the parties.

Ultimately, whether you have joint or sole legal custody, and primary, shared, or split physical custody, it comes down to whether you and your child’s father can reach an agreement – or whether you have to go to court and let the judge decide.

Custody as part of an underlying divorce

While a mom and dad are married, whether happily or otherwise, there’s almost never any kind of ‘custody’ determination being made. Most courts won’t hear custody and visitation disputes when parties are living under the same roof, whether separately or otherwise.

When parents separate and either (1) a divorce is formally filed with the court, or (2) the parties negotiate a signed separation agreement, custody is normally determined for the first time.

Depending on whether yours is a litigated divorce, meaning that you were unable to reach an agreement about how your assets, liabilities, and children will be divided, or an uncontested divorce, meaning that you did reach an agreement, your case could look a little bit different, too.

In a litigated case, the judge ultimately issues a ruling. In an uncontested case, the parties reach an agreement themselves.

When a judge determines custody during a divorce

A divorce case is filed in circuit court. If your divorce goes to trial, you’ll be in front of a circuit court judge.

As far as the laws regarding custody and visitation are concerned, the most important things to know are that the judge has to consider all forms of custody equally and that custody is ultimately determined based on an analysis of the ‘best interests of the child’ standard established by statute.

How does a judge make a decision about what’s in the child’s best interests? Carefully, in most cases – but you have to remember that a judge isn’t a child development expert or a therapist or a teacher or a pediatrician. Depending on the facts of the case, it may be necessary to involve a number of experts to introduce your evidence and to prove to the judge that your specific proposed custody and visitation arrangement meets the best interests standard. Whether we’re talking about homeschooling, breastfeeding, a child with special needs, or something else, there’s often a lot of evidence you and your lawyer need to be prepared to introduce to prove that what you’re asking for is what would benefit the child most.

Your child’s father and his lawyer will do the same, so it’s important to anticipate the objections and challenges he’ll raise and prepare yourself and your lawyer to meet them. In many cases, most of that will come up in discovery, so we’ll have a chance to find out what theory of the case they’ll introduce on the day of the trial – but we’ll have to prepare objections and counter arguments based on these points.

It’s not necessarily just up to you, your attorney, him, and his attorney, though. In many cases, there’s also a Guardian ad litem who is involved. A Guardian ad litem is a third attorney, appointed to represent the interests of the children to the court. The children are rarely (if ever) present in the actual courtroom, but the Guardian ad litem (or GAL, for short) will be. Like your attorney and your child’s father’s attorney, the GAL can introduce evidence, question and cross examine witnesses, and make oral arguments.

Like your attorney and your husband’s attorney, he or she will also charge an hourly rate, which you and your husband will have to pay. A Guardian ad litem can be a valuable resource – but isn’t necessarily. It’s tempting to fall into the trap of thinking that a third party will inevitably agree with you, but that’s not necessarily the case. Before making a motion for a Guardian ad litem, or agreeing with your husband that one should be appointed, have a full and honest conversation with your lawyer about what it might mean for your case.

It’s nearly impossible – not to mention expensive – to remove an appointed GAL later on! Remember, too, that in many courts, the same GAL may have to come back if custody and visitation needs to be modified (as it often does!), so you’re not necessarily even free of him or her once your case concludes.

Remember that anything relating to the children – custody, visitation, and child support – are modifiable based on a material change in circumstances, which means that 6 months to a year (or more) down the line, you may find yourself right back in court (juvenile court this time) again.

That’s because the whole “best interests of the child” thing isn’t static; it’s dynamic, constantly changing and evolving. What’s good for a 6 month old baby isn’t the same as what’s good for a 6 year old or a 16 year old. And the court will re-hear, reevaluate, and adjust custody, visitation, and child support as needed.

Though this section isn’t about the divorce itself, it bears mentioning that the rest of equitable distribution (the division of those retirement accounts, real estate holdings, investment portfolios, and even spousal support) does not work this way. You need to get what you need financially in your divorce, because it will not be revisited later!

When a judge makes an initial determination of custody, or when custody is modified without an underlying divorce action

A custody case without an underlying divorce – whether it’s an initial determination or a modification of custody and visitation – is handled at the juvenile court level, at least initially.

Divorce is heard in circuit court, but the lower court – juvenile court, or family court, as it is often called – handles custody disputes (of course, among other things).

If you’ve never had custody determined, it’s an initial determination. A modification is heard later. In most courts, a minimum of 6 months to a year must have elapsed since the last custody determination, and a material change in circumstances must have taken place. (Note that when meaning a material change as it relates to the child, not necessarily as it relates to the parents!)

These cases follow a fairly predictable pattern, although it also bears mentioning that there’s less formality in the juvenile court than in the circuit court. The clerks are often friendlier, and it’s often seen as an easier venue for pro se litigants (people who are attempting to represent themselves without an attorney). It’s not EASY, though; I don’t think it’s ever easy.

In most cases, an initial appearance is the first step. If one of the parties doesn’t show up, it’s possible that custody could be determined on that first day, though most often it’s an opportunity for the judge to hear what the issues are, decide whether or not to appoint a Guardian ad litem to represent the interests of the child, and set a trial date.

The court often requires other things of the parents, like to attend custody mediation, to participate in a coparenting education class sanctioned by the court, and/or to participate in any drug or alcohol testing, or psychological evaluations. In many cases, these things are mutually required, and not only required by one party, regardless of the specific allegations involved.

After the initial appearance, trial preparation begins. In most cases, the next appearance will be the custody trial.

The biggest difference between circuit court and juvenile court is the appealability of the decisions made there. To appeal something from circuit court to the Virginia Court of Appeals, you need a mistake of law. To appeal something from the juvenile court to the circuit court, you have an appeal of right – meaning that anyone can note an appeal, and they automatically receive the opportunity to have the case heard again. Not only that, but the case is heard de novo, which means that it’s a total change for a 100% do-over. It’s basically the potential for two trials in one.

Still, the more you know about what judges are looking for, and how to structure your custody case, the better prepared you’ll be, whether your case is resolved by agreement between you and your child’s father, or whether you have to litigate in front of a judge.

It’s also not just the law, it’s how the personal circumstances of the family weave through constraints set by the law and legal precedent, too. If there’s drug or alcohol addictionmental illnessrelocationreunification, new relationships, new children, special needs childrennursing, or whatever – it can have an impact on custody and visitation. Whatever your circumstances, you’ll need to navigate the best interests of the child factors to help support your desired outcome.

You’re in the right place, and you’re asking the right questions. We can give you the information you need to make the best decisions for yourself and your children. So, what are you waiting for? Download a free copy of our custody book for Virginia moms, get more information about our custody seminar, read any of the custody-related resources in our extensive library, or schedule a confidential consultation with one of our attorneys today.


When custody and visitation of your children is unresolved, it’s unsettling. You’re wondering whether there’s any end in sight, whether you and your child’s father will be able to reach an agreement (or whether you’ll end up arguing about your children in front of a judge), and whether the situation, unresolved as it is, is going to cause irreparable damage to your children. You feel guilty, but you know it is your job as a mother to do whatever it takes to protect them. You know that you are in the best place to help determine what’s really in their best interests, and it’s hard not to feel a little panicked when you feel control slipping away from you.

What do you mean when you say visitation? Is parenting time different?

Visitation, or parenting time, is what we call the time that the noncustodial parent (the parent who has the child less) gets to spend with the child. The custodial parent (the parent who has the child more) has custody.

These days, we more often use “parenting time”. It’s considered more positive and gender-neutral, and it also reinforces the idea that the noncustodial parent (the parent who has the child less) is not “visiting”. It’s kind of like how alimony is called spousal support now!

Is a certain amount of parenting time standard? Are there specific parenting plans that are ordered more often?

Like anything else, there’s always a difference between what the court will order and what you may be able to get in an agreement.

In general, parenting time ordered by the court follows some fairly predictable patterns. Under the new rules, the judge must consider all forms of custody (meaning shared, primary, and split) equally.

Primary physical custody and shared physical custody are awarded in the majority of cases; split physical custody is unusual. The court uses the best interests of the child factors to determine what is most appropriate for the children involved in each case, sometimes with the help of a guardian ad litem, custody evaluator, or other professional.

Still, most primary physical custodial scenarios end up with the non custodial parent having every other weekend, Wednesday (possibly overnight), two weeks in the summer, and alternating legal holidays.

Most shared physical custody scenarios are week on week off, or 4-3-3-4. Nothing is guaranteed, though, and there are no official “standard” parenting plans, there are just some we see most often.

Why? Doesn’t the judge know that week on/week off is TERRIBLE for school aged children?

Maybe. Maybe not. You have to keep in mind – the judge is fairly limited in cases like these, too! He or she can’t be seen to be giving one parent preferential treatment, even though one might “win” custody. (Though, really, in most cases these days the question actually becomes not who “wins” custody but to what degree the parties will share custody.) There’s not time or energy to spend coming up with super elaborate, highly specific, completely individualized parenting plans, and, even if there were, it would create a number of problems. The “losing” parent would say that it was the judge’s bias, and would appeal the decision – opening up the judge to criticism that he or she really doesn’t want.

A much easier approach – one that is less likely to result in getting overturned on appeal, in allegations against the judge’s professionalism, and one that is considered to be relatively “fair’ – is to use standard custody arrangements, and apply them more or less across the board, with minor alterations to reflect specific circumstances in individual cases.

By “specific circumstances”, it mostly means that the judge will consider your unique situation – whether your husband is deploying soon, or whether one of you travels a lot for work, whether there are specific duty days where you or he can’t have parenting time, etc – and try to resolve those with a global rule (i.e., “Wednesday” night parenting time will occur on

Wednesday unless husband has duty that day, in which case he’ll have parenting time on Thursday). It solves a global-ish problem for your families, and it doesn’t deviate substantially from what the judge would normally do: win/win, as far as the judge is concerned.

That’s different than crafting an entirely different parenting plan for your unique situation; it means a more or less “standard” plan is applied, with slight modifications made.

It is entirely possible that you’d end up with a different parenting plan, but the main point here is to expect that the court will try to fit you into something fairly templated, rather than spending tons of time figuring out something unique and complex based on your situation.

Keep in mind, too, that parenting plans, in an ideal world, might span several years of a child’s life. What works for a nursing infant might not be best for a school aged kid or an older teenager. Modifications are possible, of course, if there’s a material change in circumstances, but custody orders made by the court are also generic to help them adapt to the child’s changing circumstances over time.

Do I have more options for customizing my parenting plan if my child’s father and I can reach an agreement?

Yes! That’s always the benefit of an agreement – whether a custody agreement or a separation agreement. We always say the only limitation in an agreement is the creativity of the drafters! As complex or highly specific as you might like your agreement to be, we can certainly achieve it.

In fact, in a lot of cases, specificity is important, because it sets you both up with the same expectation. It’s when the parents don’t have the same expectation, or the same understanding of the agreement, that fights come up. That matters because custody and visitation are always modifiable based on a material change in circumstances, so, if he is unhappy (or you are, of course), he can petition the court for a modification over and over and over again.

Does that sound exhausting? Probably the best way to avoid this fate is to be specific enough that you can ensure that you are both on the same page.

An example? One area where we see issues is where a special period of visitation disrupts the normal parenting schedule. Take spring break for example. Say mom gets the child for the week of spring break in odd years, and dad gets her in even years.

What if the normal parenting schedule means that mom or dad then end up with TWO weeks in a row? Is that how the agreement is designed to work? Or not?

What about parenting time in the summer? What if both parents have selected the same week for vacation, or the vacation time conflicts with, say, a soccer camp that you’ve enrolled your child in? Who gets precedence?

A well drafted agreement can help forestall these problems, rather than allowing them to fester and blow up later – which impacts your ability to coparent together and ultimately probably means that you’ll spend more time and money litigating.

To the extent that you can address things in an agreement – whether either or both of you will be able to relocate, how you’ll handle pick ups and drop offs, holidays and vacations, sports and extracurriculars, appointments with doctors and specialists, how/when/if you’ll introduce romantic partners, and so on. There are really no limits!

You could stay fairly traditional or get wild and crazy and come up with something that is completely unique to you. The nice part is that it’s really only up to you and your child’s father to determine what’ll work for both of you and your children, too – because, let’s be honest, no judge or Guardian ad litem knows better than you two, anyway.

Custody and visitation: final takeaways

Because emotions are running so high, custody disputes can get ugly really fast. It’s important to have an experienced Virginia custody attorney on your side to help you navigate the tricky parts–whether you’re in juvenile and domestic relations court or you’re in the circuit court (because of an appeal from a lower court ruling or because your custody case is also part of a divorce action), the steps you take now can have a dramatic impact on your case and your children’s future.

Virginia courts decide custody based on what, in the judge’s opinion, is in the best interests of the child. Today, we see judges expressing a preference for a custody and visitation arrangement that allows both parents to take part in raising the child. Because of this view, courts reward parents who encourage their children to have visitation with their other parent–and punish parents who try to keep their children away from the other parent. It’s important that you get information now, before you accidentally make any mistakes that could damage your case.

We can help you answer important questions, like, “What should I do if he asks for more time?” and “What if he asks to do something with the kids that I’m really not comfortable with?” By making smart, carefully calculated decisions now, you’ll avoid giving your child’s father ammunition to use against you in court later on.

Protect yourself and protect your kids–you’ll be glad you did.