What does primary physical custody mean in Virginia?

The other day, I had a debate with a couple of the attorneys in the office. It’s interesting; we’ve been practicing so long, side by side, and yet, in some ways, our experiences (and, as a result, our professional judgment) are completely different.
Okay, so here’s the issue. Mom and dad have joint physical custody, and mom wants to enroll their child in therapy. Dad says no. The order of the court (vis a vis the separation agreement, which was incorporated as an order of the court in the final divorce decree) says that mom and dad share joint physical custody.
If mom says yes and dad says no, who wins? Or, vice versa, if dad said yes and mom said no, who would win? And, if you don’t agree with one side or the other, what can you do about it—to either force the issue and enroll the child in therapy, or to prevent the child being enrolled in a therapy program with which you don’t agree?

First of all, let’s talk about what joint legal custody means.

When we’re talking about custody, we’re talking about two separate things: legal custody, and physical custody. Physical custody deals with where the child spends most of his or her time; it’s usually physical custody we’re fighting over. Whether mom has primary physical custody and dad has visitation, or whether both parents share custody, when we’re talking about physical custody, we’re talking about where the child will be living. For more information about the vocabulary of custody cases and what it all means (which is a little bit outside the scope of this article), click here.
Legal custody, on the other hand, relates to the right to make two types of decisions on behalf of the child: (1) non emergency medical care, religious upbringing, and education. Only three things.
The Virginia Code, in §20-124.1, defines joint legal custody as “where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent”.
In most cases, legal custody is awarded jointly, as it was in this case. Why? Mostly because, as far as the judge is concerned, legal custody really goes to the heart of what it means to be a parent. These things, according to the court, are so critical for a parent that both parents, in most cases, should be consulted before decisions of this magnitude can be made.
In many cases, these are the easy decisions, though, because they are so big. Often, decisions about the religious education the children will receive were decided long before they were born; education is normally one of those things that parents see eye to eye on. Whether private school has been discussed or whether public school was always the planned-upon route, parents have often discussed and agreed on these things early on in the child’s life.
Of course, like anything else relating to custody, there are cases where there are problems. Sometimes, one parent wants to put a child in private school and the other objects (usually because of the financial commitment involved). And, in this case, a dispute arose when mom decided that she wanted the child to speak to a counselor, which dad opposed.

What happens when the parents have joint legal custody, and they just don’t agree?

That’s where our attorneys started to differ.
One said that mom can just enroll the child in therapy, but that dad doesn’t have to take her on his time if he doesn’t want to. If he really wants to oppose, he can make a motion—at which point the judge can decide whether therapy is appropriate. According to this attorney, a hearing on the merits of the case is unnecessary; the statute doesn’t require that the parents agree in order for one parent to make a decision on behalf of the child.
Another said that a hearing is necessary, because if mom goes ahead and enrolls the child in therapy, she would be violating a court order. The risk? If she goes ahead and enrolls the child, then dad brings it up in a formal hearing, mom could risk losing joint legal custody and having sole legal custody awarded to dad.
Obviously, over time, we’ve been in front of different judges and gotten different results.
That’s part of why being an attorney can be so difficult. So much of what happens depends on the court and the judge and the prevailing opinion at the time. Over the span of a career, different things can change and evolve, and some issues are harder to predict than others.
So, what happens? What do we do? Tell the client to go ahead and enroll the child in therapy (because, let’s face it, a hearing would be based on what’s in the child’s best interest, and it’s pretty likely that therapy would be considered to be in the child’s best interests), and let dad take it up with the judge if he wants? (If we’re being honest, that’s probably what the client wants us to say.) Or should we say that she should wait to enroll the child in therapy pending a formal hearing? On one hand, we don’t risk much, in the sense that the judge could decide and then we could all move on with our lives. On the other hand, though, if it’s unnecessary, as one of our attorneys vehemently believes, it’s time consuming (meaning that the child misses out on time in therapy) and expensive for mom to pursue.
Who is right? What do we do? For me, I think, the choice is clear: better safe than sorry, and go ahead and schedule the hearing. For the client, though? What does she think? Is she more willing to take her chances on dad not filing?
Part of me thinks that it’s unlikely that dad will file. I don’t know him, or anything about him, though, so keep in mind that I may be off base. It’s expensive and time consuming for him to do it, too, just the same as it would be for us. And since mom is talking about enrolling the child in therapy, rather than suggesting something that is offensive or dangerous or violates one of dad’s core beliefs, I think it’s fairly likely that an attorney would discourage him from pursuing this. Still, if he persists, he will likely find someone willing to file it for him, especially if he’s adamant about it.
What would happen, if it did go to court? Again, it all depends on the judge. I think it’s pretty likely, again, that the court would look at what’s in the best interests of the child (and the ten best interests of the child factors, specifically factor number 1) and rule that the child can be enrolled in therapy. I can’t think of a whole lot of reasons why the court wouldn’t allow mom to do this, especially since the child is obviously going through some majorly tumultuous life changes and is struggling to deal with them.
Sometimes, though, being a lawyer isn’t cut and dry. You’ve got to make hard decisions, based on the best information you can find, and sometimes it isn’t all that easy to decide. You’re taking risks, calculated ones, and ultimately you have to strike the best balance between danger and reward.
All we can do, at the end of the day, when it comes to situations like this—where two super duper experienced attorneys are telling us two completely different things—is make the best decision possible with the information that we have. Talk to our clients, come up with a plan of action, and know that there’s not always a black and white answer, as much as we’d like there to be.
If your case is one of those (the type that falls into a grey area), talk to an experienced attorney and get an opinion. Ask questions. Get involved in the decision making, and make the best decision possible. It’s all you can do—and, sometimes, it’s all we can do, too. But you’re in the right place, and you’re asking the right questions. We’re here to help.
For more information, or to talk to one of our attorneys, give our office a call at (757) 425-5200.