Child Custody In a Virgina Divorce: Legal Custody & Physical Custody Defined

June 9, 2015

child custodyWhen discussing various parenting arrangements with clients and prospective clients, I have learned that most people who are in the midst of a divorce/separation, or are contemplating such an event, make similar mistakes when it comes to Virginia “custody terminology”.

Such vocabulary faux pas are hardly indicative of a parent’s heartfelt desire to spend time with his or her child.  However, it is usually helpful to clients when they begin to get a handle on how the Commonwealth of Virginia goes about assigning labels in the context of divorce and co-parenting.  (Co-parenting refers to any situation when two parents are raising a child, in two separate households, whether or not those parents were ever married).

Of course, your mediator or divorce lawyer should certainly be able to figure out what you mean – no matter how you phrase it – when it comes to your desires for your child’s future parenting arrangements.  Not all mediators or divorce lawyers, however, do a good at explaining legal terminology.  The same goes for clients’ ability to absorb and process information in such a stressful and confusing time.

As a result, I have seen plenty of post decree (after divorce) situations where basic misunderstandings of the custody terms in the parties’ Final Order of Divorce (aka Divorce Decree) kept them fighting about their child several years after their separation and divorce.

To help alleviate this unfortunate and rampant misinformation about various custody terms in Virginia child custody cases, here is my “Virginia Custody Dictionary.”

Legal Custody:

Determines which parent has the right to make major decisions concerning their child.  Legal custody has nothing to do with where the child lives.

There are two types of Legal Custody:

    (1) Joint Legal Custody –  

        Major decisions must be agreed to by the parents.

    (2) Sole Legal Custody –

        Major decisions need only be made by the parent who is granted Sole Legal Custody.

  • The term “Legal Custody” is not intuitive to most people and problems often arise, down the road from when the settlement agreement is signed/Court order is entered, over the parents’ often diametrically opposite interpretation of the term “major decisions”.
  • Mediators encourage clients to jointly define the term “major decisions,” as part of the settlement of the custody issues in their particular case, to help save them from possible trouble down the road.
  • On the other hand, divorce lawyers tend not to focus on crafting an agreed client-interpretation of the term “major decisions”. Instead, they leave it up to the Courts to decide, should there be a problem in the future, whether a decision made, or to be made, by a parent is, in fact, “major”.  Ultimately, the Courts do have final decision-making power; but, a meeting of minds between parents is usually enough to end bitter battles before they start.
  • Examples of “Major Decisions” – Those decisions which are generally agreed by divorce lawyers and courts to be “major decisions”:
  1. Which school the child will attend;
  2. Whether the child will be required to undergo an elective medical procedure (e.g. plastic surgery on a scar);
  3. Whether braces will be placed on a child’s teeth for purely cosmetic reasons;
  4. Whether a child will be required to engage in psychotherapy;
  5. Who will be the child’s substitute caretaker necessary for the parents to earn a living (known as “work related childcare”, aka WRCC); and
  6. Choice of sleep-away camps.
  • Examples of “Gray Area Decisions” – Where decisions may or may not be considered “major”:
  1. Which week or two-week long camp a child will attend in the summer (not sleep-away camps);
  2. Which extracurricular activities a child will participate in during that parent’s custodial care time.
  3. Whether a child will participate in a specialized academic program during school hours (remedial or enhanced learning);
  4. Whether a child will participate in various in-school clubs, groups and activities;
  5. Choice of classes (middle school and high school);
  6. Choice of basic disciplinary techniques;
  7. Choice of how much to give a child for allowance/spending money; and
  8. Choice of vacation destinations with children (within reason);
  9. Choice of children’s playmates.

Physical Custody:

Determines where the child will live and the amount of time the child will spend with each parent.

Physical custody pertains to which parent (sometimes both, sometimes only one) has the primary responsibility for the care and control of the child on a given day.

  • Day to day decisions, of a routine nature, are made by the parent with whom the child is being cared for on that day.

 

Sole Physical Custody:

  • In Sole Physical Custody situations, that parent is granted all (or almost all) of the custodial care rights and responsibilities for the child.
  • The other parent is not usually involved in day-in-and-day-out responsibilities that come with raising a child.
  • The other parent is usually permitted “visitation” with his or her child (except in cases where that parent would present a danger to the child);
  • In Virginia, even in cases where one of the parents is granted Sole Physical Custody, the other parent still has the legal right to review the child’s medical and academic records (with exceptions);
  • To add to the confusion, when calculating Virginia Child Support Guideline Obligations, the “regular” calculation is called the “Sole Child Support Calculation”.  This poorly named calculation simply means that the non Primary Custodian cares for the children fewer than 91 days per year,2  even though the caretaking duties may clearly be shared between the parents.
  • Advocating for the denial of a parent to be involved in major decisions concerning his or her child is serious. It generally means that there is something very wrong with one or both of the parents’ ability to care for the child and/or use sound judgment when making decisions concerning the child.
  • In cases where one or both of the parents thinks that a child should have no or very little custodial care time with the other parent, it is often advisable that those parents litigate (hire a divorce attorney) and not mediate their cases.

Shared Physical Custody:

  • In Shared Physical Custody situations, it is presumed that both parents are involved, to a much greater extent than in a “Sole Custody” situation, in the day-in-and-day-out responsibilities that come with raising a child.
  • However, Shared Physical Custody does not, necessarily, mean 50/50.  It does, however, mean that there is a discernible sharing of parental caretaking duties for the child.
  • The term “Shared Physical Custody” is not clearly defined in Virginia law in terms of custody and parenting arrangements.
  • To add to the confusion, when calculating Virginia Child Support Guideline Obligations, there is a special calculation available for situations where a “non-primary custodian” cares for a child 91 or greater days per year.  That calculation is called the “Shared Child Support Calculation.” The Virginia Shared Child Support Calculation is able to accommodate various ratios of caretaking duties (e.g. 50/50 custody, 60/40 custody, etc.).

Primary Physical Custody:

  • The parent who is the “Primary Physical Custodian” is usually the parent who cares for the child greater than 50% of the time.
  • The term “Primary Physical Custodian,” however, is not well-defined in Virginia law.  There are situations where parents have less than a 50/50 custody share (exp. 60/40, 70/30), but where a settlement agreement/Court Order show that the custodial care plan is “Shared Custody” (even though there is, by most standards, a “primary parent”).
  • Some divorce attorneys are concerned that a judge may allow a parent, who is referred to as the “Primary Custodian,” in the settlement agreement/Court Order, to have more potential influence in possible future battles involving the child (e.g., moving away with the child).
  • If a parent is referred to in a settlement agreement/Court Order as the “primary custodian,” a school district may defer to that document when determining which school a child should attend.  (See previous Blog article: https://fairfaxdivorceblog.com/?s=prince+william )

In certain situations, and if there is no tax planning as part of the parties’ settlement, The IRS automatically awards certain child-related tax benefits to the “Custodial Parent”.  The IRS does not use the term “Primary Parent”.  The “Custodial Parent,” in terms of tax law, is the parent who cares for the child greater than 50% of the time during that tax year.  If the settlement agreement/Court Order conflicts with the actual caretaking schedule, this could present a problem if both parents wish to claim the child as their dependent exemption. This is not a problem, however, if parents insure that the settlement agreement/ Court Order matches their actual caretaking activities and if they make sure that tax planning is a part of their settlement (as it should be). (See previous Blog article https://fairfaxdivorceblog.com/?s=tax+custody )

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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“Whose Bed Have Your Boots Been Under?”

November 18, 2011

Liar, liar pants on . . . pants off?  Just how much cheating is going on these days in the United States?  I have seen statistics everywhere from 25-60% of married individuals having engaged in or being immersed in a life rife with extramarital affairs. The statistics are all over the board because, of course, not everyone raises their hand when asked if they “did it” with someone other than their spouse.  Even at 25%, though, this is a big number.  Having spent years in the divorce business, though, I’m not surprised. I can tell you from experience that I could play country music in my office lobby and at least half my clients would feel that they were singing about them!

Who are these cheaters and what factors lead to this disruptive act? Many experts believe it is not so much the individual’s character but is, instead, a natural instinct.  For men, it makes biological sense.  For women, I’m not so sure, but who knows? Most experts say, for the philandering-woman, she sleeps with other men because she is looking for “emotional” support where there is none at home. When it gets right down to it, though, men also play around to get attention when their wives are too busy with all of the details of life and work and mommy-ing to give the attention and affection those men need. Everyone seems to be looking for love – in all the wrong places!

Many experts believe that the only reason the statistics aren’t higher is because some married individuals are simply never presented with the opportunity to cheat!  Some of the factors inhibiting the animal in all of us are:

    • how much free time you have out of the sight of your spouse;

    • the number of members of the opposite sex that you run into each day;

    • your bond to your spouse (that’s the best one),

    • whether you have a vast wealth of moral character; and

    • where you fit in on the scale of ugliness and charm!

Photo Taken by Lars T Schlereth

If you are thinking about “putting your boots under the wrong bed”, get a divorce first.  Otherwise, you are will end up being the “bad guy” or “bad girl” even if your heart felt it had no choice.  Talk with your spouse.  Get some therapy.  Or, suffer the consequences.  Divorce is tough and no divorce is tougher than when adultery is the big angry elephant in the room.


CHILDREN of DIVORCE: Do They Have Shaky Relationship Skills as Adults?

September 22, 2011

We all know that divorce can be a very traumatic time for the children who get caught in the middle. For years, though, there has been loud rumbling that “if mom and dad keep it friendly, everyone will be OK.”  Is that true?  Not really, say the experts.  Though the damage may not appear in acting out behavior, plummeting grades or depression, you need only to look at your own children to see that children learn most about life – at least as far as their parents are concerned – by way of watching what the the parents do, not what they say.  That should make it easy to see, then, that kids who live through a divorce are probably more likely, as adults, to experience their own divorce.  Monkey-See, Monkey-Do.

According to Nicholas H. Wolfinger, in his book Understanding the Divorce Cycle: The Children of Divorce in their Own Marriages, there is clear statistical evidence that “divorce is transmissible from parents to children and that it continues, in many families, to cycle through generations.”  “The crux of the idea”, says Wolfinger, “is that the family structure of origin powerfully affects marriage formation and marital stability in the adult offspring of divorce.”  Wolfinger and colleagues found that:

Among adults whose parents had two or more failed marriages:

67% divorced, 26% two or more times.

Among adults whose parents divorced and remarried only once:

58% divorced, 19% at least twice.

Among adults raised in intact homes:

41% divorced, 9% two or more times.

What to do if you are contemplating or are in the middle of divorce?  Try your best to use the divorce as a learning tool to help our kids develop mature, seasoned conflict resolution skills.  Sound trite?  Maybe.  But, at least it will keep you focused on your kids and not your soon-to-be-ex-spouse’s idiot behavior and post-divorce financial blues.  It will help you, too, blossom into the level-headed and child-centric negotiator that you need to be at this complex and emotional time.


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