There are two aspects of custody: legal custody and physical custody. “Legal custody” refers to the right to participate in major decisions involving your children’s general welfare, including where they should attend school, whether they should receive elective medical treatment, or whether they should travel internationally without a parent. “Physical custody” means which parent has possession of the children on any given day.
Almost all divorcing parents are awarded “joint legal custody” by the courts unless there is an established pattern of one parent making decisions that are contrary to the children’s best interests, or the parents are completely unable to communicate in a productive manner to make decisions regarding the children. In the latter instance, one parent may simply be given “final decision-making authority” in the event of an impasse, but he or she is still required to confer with the other parent and consider their input before making the final decision.
If one parent is awarded “sole legal custody,” the other parent still has legally recognized parental rights over the children, such as the right to access their school and medical records, and the right to attend any of the children’s events occurring in a public setting.
As for physical custody, one parent may be given “primary physical custody,” leaving the other with visitation (now also referred to as “parenting time”) on alternating weekends, and usually a dinner or overnight visit weekly or bi-weekly. Some judges generally prefer this type of schedule for school-aged children, as they believe it provides more stability for the children in terms of making sure homework and projects get done, being prepared for sporting events with the proper equipment and uniforms, having a uniform structure for bedtime and school commutes, etc.
The alternative is a “shared physical custody” arrangement, which can be a 50/50 split of time with the children (alternating weeks, or Monday-Tuesday with Mom, Wednesday-Thursday with Dad, then alternate weekends), or something between 50/50 and primary physical custody (for example, Mom has Wednesday afternoon through Monday morning on alternating weeks). Some judges prefer this type of schedule because it gives equal deference to both parents, and clinical research supports children having as much contact as possible with both parents in order to best adjust to a divorce and have healthy relationships with both parents as they get older.
It is impossible to predict what sort of physical custody schedule a judge will order in your case—every case is different, depending on the children’s ages, each parent’s relationship with the children, how far apart the parents’ households are, whether either parent has involved the children in the marital conflict, etc. The specific factors that a judge is required to consider in every custody determination are:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The age and physical and mental condition of each parent;
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
- The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
- The relative willingness and demonstrated the ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
- Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
- Such other factors as the court deems necessary and proper to the determination.
However, any judge will tell you that court should be the absolute last resort for seeking a resolution on custody—only you and your spouse can truly know what is best for your children. Making the effort to compromise and reach an agreement on custody is going to lead to a far better outcome for your family than asking a stranger in a black robe to decide for you.
