Will I Lose Custody of my Children in Virginia?

If you’re facing a custody battle, the question is usually not whether you’ll lose custody, but to what degree you and your child’s father will share custody. In the majority of cases, one or the other parent doesn’t “lose” custody at all.

In cases where the child’s father doesn’t fight for custody, the typical custodial relationship is that mom has primary physical custody, and dad has visitation. The visitation schedule may vary depending on the preferences of the individuals involved, but the amount of time each parent gets is relatively clear. Primary physical custody means that the noncustodial parent has less than 90 days with the child per year.

In cases where the child’s father DOES fight for custody, the typical custodial relationship is that mom and dad share physical custody of the child. While mothers do not generally favor this scenario, it is a far cry from losing custody.

You need to remember that, just because you and your husband may disagree about the appropriate custody arrangement for your children does not mean that one parent will “win” custody and the other parent will “lose.” It’s rare that a custody case results in one parent with primary physical custody and the other with visitation. If it does happen, it happens most often in a scenario where the parents CAN’T share custody—like if one parent has relocated and sharing custody would be impossible.

So, what does shared custody mean? In a shared custody arrangement, the noncustodial parent has 90 overnights or more with the child. The degree to which custody is shared depends, like primary physical custody, on the preferences of the individuals involved. Shared custody can be shared when dad has 90 overnights per year, or when dad has 180 nights per year. It really all depends on the situation and how you work it out. You should know, too, that when you share physical custody, child support is decreased (because, theoretically at least, the noncustodial parent is bearing an additional financial burden by virtue of the additional time spent with the child). Child support in a shared custodial arrangement is based on a sliding scale, so that a dad who has 90 days with the child will pay more than a dad with 180 days.

Why would judges award shared custody? Well, it all goes back to the best interests of the child factors. The court believes that the child’s interests are best served when she has frequent, quality access to both of her parents. When both parents are desirous of spending extended periods with the child, the child’s interests are best served by allowing the parents to have that opportunity.

While shared custody has advantages and disadvantages of its own, those are outside the scope of this article. My point here is merely to reassure you that, absent extenuating circumstances, you probably won’t “lose” custody of your children in your divorce or custody case. It is far more likely that, if your child’s father wants to fight you over custody, you’ll end up with some kind of shared custody arrangement of your children.

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