What is a reasonable agreement when it comes to custody and visitation? This is a question we get a lot – hey, I understand! – from concerned moms who are wondering what’ll happen after they separate from their child’s father.
What should a custody and visitation agreement look like? How much time with my kids do I have to give up?
It’s difficult to go from “family time” to “mom’s time” and “dad’s time,” and figure out how to reasonably and fairly divide it. Not only the actual division of the time, but the emotions involved, make this a really challenging contention. Most moms start out with wanting primary physical custody, too, so what they’re actually secretly asking is how to get the custody arrangement in place that reflects what they want.
I’m a mom, so I understand. My kids are still young, so it’s still physically painful for me to be separated from them for any period of time. It was especially challenging for me when I first went back to work after having my first child, although we both quickly adjusted to the new schedule.
Even when you desperately crave a break from your children, the thought of separating from them for any period of time can be physically painful!
In a lot of ways, I think that’s what it’s like in a custody and visitation scenario. Difficult to imagine, but once you start sharing your time according to a particular schedule, you get used to it. Still, that doesn’t mean that it’s easy to sit down, put pen to paper, and actually agree on a schedule. They’re your kids, after all, and both you and your child’s father have ideas about the kinds of parents you want to be. In a lot of ways, I think that these beliefs – these aspirational “the mom I want to be” ideas – that hold a lot of people back from agreeing to a particular structure, at least initially.
What’s reasonable? What should I propose to my child’s father?
That’s always going to be a tricky question – which I’m sure you already know – because what’s reasonable is subjective.
Plenty of parents would be willing to tell me that anything that did not result in them having primary physical custody is not reasonable for any number of reasons, but it usually comes down to one main theme: I do it all, and he doesn’t.
I see it a lot. In a lot of families (mine included), there is a division of labor that results in the mother being primarily responsible for childrearing. So there’s a sense of ownership there, which means that moms often tell me that he wouldn’t know what to do with the kids if he had them. Therefore, of course, mom should have primary physical custody.
While I agree – I mean, of course I do! – in many cases, the court does not.
There’s a difference between what you can get in an agreement, negotiated and signed between you and your child’s father, and what might happen if your case went to court.
How is custody and visitation decided by the court?
Even if you and your child’s father hope to reach an agreement about how to handle custody and visitation, it’s helpful to know how the court views these things. For one thing, it can help inform your negotiations and keep things – there’s that word again – reasonable.
Virginia Courts use the best interests of the child factors to decide custody and visitation cases.
In general, custody and visitation decisions center on the 10 all-important best interests of the child factors. Now, what’s in the best interests of a child is more or less subjective, too, but that’s why there are factors – if you litigate custody and visitation, you’ll want to center your argument around each, and how you plan to maximize the benefit of all of these things to the child or children in question.
In many cases, a Guardian ad litem is also involved. It is the Guardian ad litem’s job to review the situation, including meeting with both parents and the children involved, and making a formal recommendation to the court about what the Guardian ad litem believes to be the child’s best interest.
Recently, too, the law changed, and now the courts have to consider all the different types of custody equally. Though I think there’s an argument to be made that this was always happening, the practical implications of this have been that shared custody arrangements by court order have increased exponentially.
While the law does not say that shared custody has to be considered first, I do think that you could suggest that’s what’s actually happening.
Am I guaranteed to get shared custody if I go to court?
No. Of course not. In litigation, there are very few guarantees. Though I think it’s probably fairly likely in most cases, especially in cases where mom and dad are decent parents, its never a guarantee.
It’s down to the best interests of the child factors, the GAL’s recommendation, the evidence, the witnesses and their testimony, and, ultimately, the conviction (or lack thereof) of the judge.
Just the fact, though, that dad hasn’t taken on the primary childrearing position within the family is not enough to preclude him getting custody, including a substantial amount of time. Generally speaking, the court will give him a chance to learn how to do it. According to most judges, dad deserves the opportunity to learn.
What’s reasonable? Well, what you can agree on. And, if you can’t agree, the judge may have to step in to decide. Reasonableness is subjective, and, if you’re looking for something that FEELS reasonable to you, you may have a hard time finding it.
It’s a good idea to work with an experienced custody attorney who can help explain to you what normal custody and visitation arrangements look like (spoiler alert: there’s a WIDE RANGE) and what might work in your specific situation.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.