What every Virginia woman needs to know BEFORE her custody case

If you and your ex husband have a child in common, cutting the ties that bind you together is a little more complicated than just getting a judge’s signature on a final divorce decree. The reality is that you and your child’s father will be bound together at least until your child reaches the age of 18, but, in reality, in most cases the relationship is forever. Your child will eventually grow up, graduate, get married, and have a baby of his or her own, and it’s very likely that the two of you will both want to be present at those future events. In order to do that, and to make the situation as comfortable for everyone involved (but probably most importantly for the sake of your child), you’ll have to cooperate and co parent together as effectively as possible.

We all know someone whose parents had such a nasty divorce that the two can’t bear to be in the same room with each other, even years and years later. We probably also know someone else who doesn’t have a relationship with one or the other (or both) of his parents because of the way they behaved during and after their divorce. Obviously, your goal is not to be one of those kinds of parents.

Still, if you’re facing a custody case, or if custody is going to be an issue in your divorce case, you’re probably really nervous. Clearly, you want to do everything you can to promote the best interests of your child, but it can be difficult to know what steps you really need to take in the beginning. You don’t want to prejudice your case for failing to act when you should, but you also don’t want to jump the gun, act too aggressively, and turn your case into a messier fight than it would otherwise have been. The trick is to find a happy medium—set up expectations early on that allow you to be the kind of parent you want to be, and prevent the fight from escalating to the point that neither of you can possibly win.

To effectively handle a custody case, whether on your own or with an attorney, you will definitely need to know the vocabulary of a custody case first. First of all, there are two kinds of custody that we’re talking about when we’re getting ready to handle a custody case: legal custody and physical custody. Each of these refers to different parental rights and has a different scope of authority. Let’s discuss.

Legal Custody

Legal custody refers to the right to make three kinds of decisions on behalf of the child: (1) non emergency medical care, (2) religious upbringing, and (3) education. In most cases, legal custody is shared between the parties, so what the agreement or order would say is that the parties have “joint legal custody.”

What “joint” really means is that both parents have to collaborate with respect to these issues. The parents are expected to talk with each other and come to agreement together.

Problems rarely arise with respect to legal custody, because, for the most part, these kinds of decisions were made years before the custody case. The child probably has been enrolled in school and brought up in a specific religious faith from the very beginning, so very few fights come up because of these issues.

The most common problem we see with respect to legal custody has to do with the debate over public versus private school. If the issue comes before the court, in most cases, the judge will order that the parents continue to do whatever they were doing prior to the hearing. If the children were enrolled in private school, they’ll stay there. If, on the other hand, they were enrolled in public school, they’ll stay there.

If, because of the divorce action, one parent insists that the children stay in private school but the other party argues that they can’t afford to pay the tuition and fees associated with that private school, the judge will be much more inclined to listen and, possibly, to order that the children be enrolled in private school instead.

It is possible that one parent could have sole legal custody, but it’s very rare. In most cases, when I see sole legal custody, I see it when one parent is completely uninvolved. If both parents come to court and indicate an interest in parenting their children, it is incredibly unlikely that the judge would order that one parent have sole legal custody. Sometimes, though, when one parent is going to be gone for an extended period of time (like if he is serving in the military on a year-long deployment), one parent temporarily has sole legal custody, because they have to be able to make those kinds of decisions even if the child’s father isn’t available on a daily basis to talk about the issues affecting the child. Usually, as soon as the child’s father returns, custody reverts back to joint legal, and the other parent again has the opportunity for input regarding the child’s upbringing.

Physical Custody

Physical custody is where most of the major disputes over custody arise, because it deals with where the child spends his or her time. Physical custody is broken down into three different categories: (1) primary physical custody, (2) shared physical custody, and (3) split physical custody.

Primary Physical Custody

In a primary physical custody situation, the non-custodial parent (the parent who has the child less) has the child for 89 or fewer days per year. A day is defined as a 24 hour period, but the court will also give credit for half days. Smaller increments of time (like if your child has a Wednesday night dinner with her father) are not considered towards the total.

A primary physical custody situation usually looks fairly typical: every other weekend, Wednesday night dinners, alternate legal holidays, and two weeks in the summer. So long as the days that the non-custodial parent has doesn’t add up to more than 89 days, you’re in primary physical custody territory.

One of the nice things about primary physical custody is that it doesn’t affect child support. Whether dad never sees the child or spends the full 89 days with the child in the calendar year, the child support is the same, and it is based on more generous guidelines than shared custody guidelines.

Shared Physical Custody

Even though shared physical custody probably sounds suspiciously like 50/50, it doesn’t have to be. A shared physical custody arrangement is one where the non-custodial parent (the parent who has the child less) spends 90 or more days with the child during a calendar year.

These custodial arrangements don’t follow a predictable pattern. They can be week on/week off arrangements, or the child can live with one parent during the school year and the other for the entirety of the summer. It really all depends on the people involved and the arrangement they come up with.

Unlike primary physical custody situations, in a shared physical custody arrangement, the amount of child support the non custodial parent pays depends on the number of days he spends with the child. Dad will pay more support if he spends 90 days with the child than if the time is split exactly in half and he has 182.5 days. The reason why is because the court assumes that if dad is taking responsibility for so much more of the child’s time, that dad is sharing more equally in the costs of keeping a child during that time. (He’s providing the meals, the home environment, the wi-fi, the water, and electricity, and also probably buys the child more clothes and other incidentals because they spend more time together.) Is this accurate? In most cases, probably not. But still, that’s the way the court thinks, and that’s how child support is awarded.

Split physical custody

Split physical custody is very unusual, and usually doesn’t happen unless the parties specifically agree to split custody. What you have here is The Parent Trap scenario, where one parent takes one child and the other takes the other child. Usually, this happens because one child is either disabled or a discipline problem, and the parents agree that its in the children’s best interests to be separated.

Judges don’t like to separate siblings, so they rarely order this kind of custodial arrangement. It can happen, but it’s incredibly rare.

What happens if I move away from my child’s father?

Relocation cases are some of the most difficult cases. Obviously, you’re an adult, and you have the freedom to decide to move anywhere you want at any time. However, once you share a child (who has lived in Virginia for at least six months) in common with a man who resides in the Commonwealth of Virginia, the court is going to have something to say about it if you take the child away from his or her father without his approval.

It may seem unfair, but the court really thinks that it is in the best interests of the child to have both parents be involved in his or her life. If you’re planning on moving, you’re going to have to (1) either go before your custody case has begun with the court and hope to be able to stay long enough somewhere else to establish jurisdiction there before your child’s father files in Virginia, or (2) try to litigate a relocation case.

To win a relocation case, you’d have to argue that it is in the child’s best interests to move. (If you try to say that it is in the child’s best interests because you’ll earn more money and therefore be better able to support the child, you’re probably wasting your breath.) It would be very difficult to demonstrate to the court that anything is more important, or of more value to the child’s development, than having dad there to help raise him or her. If you’re planning on moving forward with this kind of case, you’ll definitely want to speak with an attorney about it—and the sooner the better.

Still, before you make any decisions, you should carefully consider what relocation means. There are definitely consequences. In a lot of the cases that I’ve seen where the parents live far enough apart that they can’t share the child on regular weekends and school holidays, the non-custodial parent gets bigger blocks of time during holidays and school vacations. I’ve seen cases where dad gets every single Thanksgiving (though judges don’t usually do that with Christmas), and even where dad gets the entire summer vacation. For a lot of moms, that can be a hard thought to stomach. If you’re thinking about relocating, make sure you’re okay with dad having extended periods of time.

Not only that, but the relocating parent is often required to pay for the child’s travel expenses. If you’re moving somewhere so far away that the child would have to fly for visitation, you may get stuck with the expense. If your child is young enough that he or she can’t travel alone, you may have to purchase a companion ticket—and those costs add up quickly.

Before you make any decisions, it’s best to consult with an experienced Virginia divorce custody attorney. Custody cases are tricky and full of common pitfalls, and you definitely don’t want to make any mistakes where your children are concerned. Get the advice that you need to make the best decisions for you and for your children from the beginning. Give our office a call at (757) 425-5200 to schedule a confidential one hour consultation with one of our attorneys.

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