When it comes to custody and visitation of minor children in Virginia, not very many things are set in stone, especially if the parents are able to reach an agreement about how they plan to work together to co parent their children. There aren’t a lot of hard and fast rules when it comes to custody and visitation, except to the extent that we use the “best interests of the child” factors to guide our decisions. Whenever custody and visitation issues are brought in front of a judge, the judge makes a decision based on the ten best interests factors—so, as you can imagine, the types of custody and visitation arrangements that might be ordered vary dramatically from one case to another. A trend we’re seeing more and more often in contested custody cases, though, (that is, custody cases where mom and dad don’t reach an agreement but instead let a judge decide) is that week on/week off custody is sometimes awarded.
If you’re like most moms, the thought of week on/week off custody is terrifying, especially if your child is school aged. Though there are lots of reasons you could certainly cite to discuss why it’s not going to be appropriate for your children in your case, I think it’s also important to consider the strong possibility that, if you and your child’s father can’t reach an agreement regarding custody and visitation, the judge could conceivably award week on/week off, even if you completely, totally, 100% hate and detest the idea.
Virginia Best Interests of the Child Factors
In case you haven’t had a chance to review them yet, you should familiarize yourself with the best interests of the child factors.
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.
When Virginia child custody is contested
Like I said, there are no hard and fast rules when it comes to Virginia custody and visitation—but that doesn’t mean that there aren’t some guiding principles, or some general trends that we see in these types of cases. Typically, in cases where custody is contested (and, of course, where mom and dad are both decently good parents), we see shared custody awarded most often.
What is shared custody?
Shared custody happens anytime the non custodial parent (the parent who has the child less) has the children for more than 90 days (defined, of course, as a twenty four hour period) in a calendar year. It doesn’t necessarily mean 50/50 custody (because, if you do the math, you’ll notice that at the 90 day threshold, the custodial parent—the parent who has the child more—would have 275 days in a year), but it can mean that.
What are the advantages and disadvantages of shared custody?
The biggest difference between shared custody and primary physical custody (which happens when the noncustodial parent has 89 or fewer days with the child in a calendar year) is that shared physical custody results in a different amount of child support depending on the amount of time each parent spends with the child.
If a parent has more time with the child, they’ll pay less in child support. A shared physical custody support guideline is based on the assumption that a parent pays for more of the necessities of the child’s life from day to day if he or she spends more of the day to day time with the child. Again, it doesn’t necessarily mean 50/50 time, but if dad is taking responsibility for more of the time, he’ll have to pay less in support. (Which, if we’re being cynical, can be a major reason why dads pursue shared physical custody over primary physical custody.)
Week On/Week Off Custody
In cases where custody is contested, we see more shared custody awarded. Why? Well, mostly, because a judge can’t determine whether it’s in the child’s best interests to spend more time with one parent at the expense of the other, especially if, on the surface, both parents look like good, loving, responsible parents.
Though it doesn’t have to be week on/week off custody, we see it awarded fairly often.
Why? Probably mostly because it seems fair. It’s hard to decide between two perfectly good parents, and, to a judge, it would probably seem pretty arbitrary. There’s no presumption for one parent over the other in Virginia courts, and we see judges and guardians ad litem who are very willing to let dads try their hand at having a lot of parenting time with their children.
I represent women only, so I share your bias towards mom. After all, isn’t it always the moms who do, well, pretty much everything? Everything from kissing the booboos to making the mickey mouse pancakes and driving the carpools—well, in my family (like in many others I know of), it’s almost always mom. It’s often moms who make sacrifices to their professional careers to stay at home or minimize their work hours to support their families (though, of course, not always). It’s not that dads can’t be great (my own dad is a pretty awesome guy and was always a great dad), it’s just that moms tend to take on a larger share of the caretaking responsibilities. And it’s harder for them to share some of that with their child’s father, especially once they stop working together as a family unit.
The best interests of the child factors, though, don’t favor one parent over the other—and you won’t find favoritism reflected in the court’s decisions, either. In my experience, especially in more recent years, I’ve seen a distinct, definite preference for shared custody in cases where custody is contested.
So what does that mean for me? What if I really, really don’t want week on/week off custody?
Talk to an attorney about your specific case and if you have an idea of the judge who might be on the bench for your custody trial, if it comes to that. Your attorney can give you a better idea of the local courts, specific judges, and what you might expect him or her to decide in your case with your unique facts. There’s some variation, of course, since judges are only human—they can’t make the same decisions across the board.
A lot of times, though, it’s best to keep custody out of the courts if you don’t want to wind up with a disadvantageous custodial relationship. If you and your child’s father can reach an agreement without going to court, you’ll have more say over what your parenting time will look like. If you really, really hate the idea of shared custody, try proposing something else to your child’s father—and see where that gets you. Though you may have to give him more time than you originally wanted to (chances are good he’ll want shared custody), if you can control, to any extent, the way the custodial schedule is handled and thereby avoid a week on/week off schedule, it may be that’s the way to go.
What if we have to go to court, the judge awards week on/week off, and it’s every bit as miserable as I expected it would be?
Custody and visitation are always going to be modifiable based on a material change in circumstances—that’s the good news! So, even if you go to court and you get a bad result, you can re-petition the court to determine custody and visitation if there’s a change in circumstances later on down the road (and there will be).
At that point, you’ll be able to show the court whatever evidence you have about how terrible week on/week off custody has been for your kids, and that will factor into the judge’s decision this time around. That kind of specific evidence can be really helpful to judges; before you tried week on/week off custody, after all, you could only speculate about the impact it would have on your children.
We see lots of judges award shared physical custody when moms and dads contest custody in Virginia courts. For more information, or to schedule an appointment to speak with one of our licensed and experienced Virginia custody attorneys, give our office a call at (757) 425-5200.