Custody cases are the worst, especially in terms of the levels of anxiety that moms feel as they begin to prepare for one. There’s a lot of fear there (and understandably so), and often that fear makes it difficult for moms to separate the horror stories from the actual, factual truth about what could happen in the courtroom.
We’ve all heard a horror story or twelve, and it doesn’t help that we’ve all watched TV and seen these types of scenarios unfold dramatically (or maybe “cinematically” would be more accurate) and unfairly. We’ve got general ideas about how the court rules, and generally I hear crazy things, like that it’s all in mom’s favor when it comes to the kids (it’s not), or that judges and guardians ad litem today are always on dad’s side (they’re not).
Family law cases have touched a lot of people’s lives in a really personal way. We almost all know someone who has been through a traumatic divorce or custody case, and it’s exactly those kinds of experiences that drive so many women to browse the internet at 2 am looking for solutions to all of their problems.
I know we all worry about all the possible ways that our particular case could go wrong, and it’s those kinds of deep seated fears that keep us awake at night. It’s hard to turn off the anxiety sometimes—especially when what you’re worried about is something as fundamental as whether you might possibly lose custody of your kids.
In a way, in the beginning, it almost all seems like losing anyway, doesn’t it? When a relationship breaks up, and there are kids involved, there’s a fundamental shift in the family. Rather than having “family time” together (even if not all parties are present), there becomes a separate and specific time for each parent to spend with the children. For the mother who has always been involved in every little detail of her child(ren)’s lives, this can come as a major shock. Going from family time to mom time and dad time is disconcerting; there’s no question that it’s a major change. And, in a lot of ways, it seems like the sheer fact that there is dad time (to which mom, presumably, is no longer invited) is a kind of losing.
With those types of feelings as the backdrop, it’s hard to even imagine a custody case—and, with it, the possibility of losing custody entirely. Even the idea of having a custody and visitation schedule formally ordered is alarming.
But don’t get too far ahead of yourself. There’s no doubt that custody cases are scary and intimidating, and come with a whole host of difficulties, but you don’t need to add more anxiety on to yourself. What you need, at this point, is to get as much up to date, Virginia specific information as possible, so that you know what to expect. Most important, probably, is knowing what can and can’t happen, and how that might play out in your life.
First and foremost, you should know, that in general, in Virginia, custody is not really a winning or losing proposition. The courts don’t just take custody away from good moms. If you abuse your kids or something, sure, you risk losing custody, but that’s a rare case, not a normal one. Most of the time, in most custody cases, two pretty good parents are fighting each other for more time with the kids. In that type of case, you won’t lose custody—at least, not in the sense that the court would award custody to dad and take it away from you. (Again, not unless there’s abuse or neglect allegations, or some kind of extenuating circumstances, like that your new live in boyfriend is a registered sex offender. It takes some pretty serious facts to warrant a major change in custody.)
What do we see in most cases? Well, most of the time, custody is decided in an agreement. Mom and dad agree, for whatever reason, that either mom or dad will have primary physical custody, or that mom and dad will share physical custody of the child. It’s written down in an agreement that both parents sign, and everybody is mostly happy with it.
That’s not to say, of course, that it’s easy to get an agreement in place. Sometimes, there’s a lot of negotiating back and forth. Other times, we go to mediation to work it out. Sometimes, courts order mediation. In other cases, we have to go to court first (usually for an initial appearance) and it looks like we might have to litigate, but, eventually, an agreement is reached.
What happens in custody cases where we can’t reach an agreement? Ultimately, we have to go to court and let the judge decide custody. In those cases, there’s often a guardian ad litem (an attorney appointed to represent the interests of the child to the court) who makes a recommendation, and you and your husband (and your attorneys, if you’re represented by counsel) will put on a case that stresses what is in the best interests of the child. Then, the judge decides.
In those cases, usually the issue isn’t whether one parent or the other is going to lose custody. The issue is, instead, to what degree the parents will share custody.
So, what is shared custody anyway?
When we’re talking about custody, there are two types: legal and physical.
Legal custody is almost always awarded jointly, and it refers to the right to make three types of decisions on behalf of the child: non emergency medical care, education, and religious upbringing. That’s it. That’s not what you’re fighting about.
What people tend to fight about is physical custody, because physical custody has to do with where the child spends his or her time. Physical custody can be awarded three ways: primarily to one parent, shared between both parents, or split. In a split physical custody scenario, one child lives with one parent, and the other child lives with the other parent. (Don’t worry; judges don’t award custody this way. When a split physical custody situation exists, it’s because the parents agreed to it.)
The judge is looking at whether custody will be awarded primarily to one parent, or split between the two.
What’s the difference between primary physical custody and shared physical custody?
In a shared physical custody situation, the non custodial parent (the parent who has the child less) has ninety or more days with the child during the calendar year. In a primary physical custody situation, on the other hand, the non custodial parent has eighty nine or fewer days with the child in a calendar year.
It affects the way child support is handled, too. In a primary physical custody situation, child support is determined based on a fixed formula, and it doesn’t matter whether the non custodial parent has the child for the full eighty nine days or doesn’t spend any with the child. In a shared physical custody situation, though, the non custodial parent pays less depending on how many days they spend with the child during the year. It’s based on a sliding scale, so if the non custodial parent spends ninety days with the child, he or she will pay more than if he or she split the year with the child’s other parent and had 182.5 days.
Shared custody does not mean that custody is split 50/50, though it can mean that. Some judges do award custody on a week on, week off schedule. Still, shared custody isn’t the end of the world.
Still, there are lots of things you can do to begin to prepare for your upcoming custody case. To request a free copy of our book, “The Women’s Custody Survival Guide,” click here. Likewise, if you’re planning on heading into the courtroom, you may want to get more information about what you’ll need to do in the courtroom. A great place to start would be by attending our custody seminar, Custody Bootcamp for Moms. For more information about the seminar or the book, just follow the links to our webpage.
Want to join a free custody e-course? Just request a copy of the book, and we’ll start sending you emails, full of useful tips and tricks for women facing custody cases in Virginia. All of the content in the e-course was written just for women like you, all by one of our licensed and experienced Virginia custody attorneys. Click here (LINK) for more.
If you’re still worried, you may want to talk to an attorney one on one about your specific case. To talk to someone in our office, give us a call at (757) 425-5200.