Understanding how courts make decisions in these cases can be critical.
In order to make sure that your child’s best interests are properly protected, it is important to have at least a basic understanding of the legal framework for court ordered arrangements for minor children.
Legal Custody
Legal custody is the legal authority to make decisions for a child. For example, the ability to enroll a child in school and authorize medical treatment would generally be made by a person who has legal custody of a child.
As a general principle, there are two ‘types’ of legal custody. Joint custody basically refers to both parents having joint authority or ability to make legal custody type decisions for a child. This joint authority can be specifically delineated (e.g. it can set forth exactly how each parent can make specific decisions), but more often than not it will not be.
Sole custody refers to arrangement where only one parent has the authority to make legal custody decisions for a child. In Virginia Code Section 20-124.2, courts are required to “assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children.” Because of this, sole custody is typically disfavored unless there are significant reasons that a parent cannot be involved in decision making for a child.
Physical Custody
Physical custody refers to where the child will live. You may often hear the phrase “primary physical custody.” This refers to an arrangement where the child will live with one parent primarily, and have set periods of time (or visitation) with the other parent.
You may also hear people talk about “shared custody.” This term is used in two different ways.
The “Shared Custody Guidelines” are set forth in the Virginia Code to describe the child support guideline formula that takes into account the amount of “days” that each parent has the child in a calendar year. The idea being, that once a noncustodial parent has a certain number of days in a calendar year (90), then the child support that parent pays should gradually lessen as the number of days that parent has the child increases. In addition, many people also use the term “shared custody” to describe an arrangement that gives each parent roughly equal time with the child or children.
Visitation
Visitation is generally the schedule that the noncustodial parent has with the child. For example, a noncustodial parent might have the children on “alternate weekends from Friday after school until Sunday at 6:00 p.m.” Like custody, visitation is determined by looking at the best interests of the child.
Modification
Once a court orders a particular arrangement, it may still be possible to have the court change that arrangement at a later date. Typically a court ordered custody or visitation arrangement may be modified upon a “material change in circumstances,” In other words, if circumstances change, you can ask the court to modify a custody or visitation arrangement in light of the new circumstances. A “material change in circumstances” can include a wide range of situations, and there may not be many hard and fast rules to help determine what, exactly, constitutes such a change. If you believe that circumstances in your family situation have changed, such that a change in the custodial arrangement is appropriate, it is always best to speak with an attorney.