In Virginia, there are two types of custody: legal and physical. Legal custody is the right to make decisions for your children, including major decisions such as healthcare, education, and religious upbringing. Physical custody is where the children live. Visitation is a subset of physical custody, and can be generally understood as the time spent with the non-custodial parent.
Virginia Code § 20-124.1 defines both “joint custody” and “sole custody” in Virginia. It defines joint custody as:
(i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child (emphasis added).
§ 20-124.1 then defines sole custody as a situation where only “one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.”
Virginia Code § 20-124.2 and Virginia Code § 20-124.3 govern all custody and visitation findings in Virginia. § 20-124.3 sets forth the ten factors that the courts must consider when making rulings on custody and visitation. These factors are generally referred to as the “best interests factors.” In all custody determinations, legal and physical, the courts must weigh the best interests of the child and consider each of the factors.
It is rare that a judge would order sole legal custody to one parent over the other in most custody matters in Virginia. While sole legal custody does not terminate the parental rights of the parent who does not have legal custody, it does severely handicap that parent’s role in the child’s life. Virginia Code § 20-124.2(B) states that “[t]he court shall 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.” This Code section expresses the public policy of Virginia that children benefit from having two parents who are actively engaged in their lives, and from having two parents share responsibility for making important decisions in their lives. In addition, courts have found that parents have a fundamental constitutional right to make decisions regarding child-rearing, and the state may not interfere with this right absent the compelling state interest of protecting the child’s health or welfare. See, e.g., Williams v. Williams, 256 Va. 19, 501 S.E.2d 422 (1986). Thus, courts are very reluctant to order sole legal custody to one parent in Virginia.
Situations where Virginia courts award one parent sole custody are usually extreme cases of complete discord within the family, such as:
- where the parents simply cannot communicate or agree with each other (see e.g. Rodgers v. Rodgers, Virginia Court of Appeals Record No. 0404-07-3 (2008) Unpub.);
- where one parent continually undermines the other and engages in parental alienation (see e.g. Roberts v. Roberts, 41 Va. App. 518, 586 SE 2d 290 (2003),
- where one parent has abused the child (see e.g. Cooner v. Cooner, Virginia Court of Appeals Record No. 1570-03-4 (2004) Unpub.), or
- where visitation or access to the child has been unreasonably denied (see e.g. Brown v. Brown, Court of Appeals Record No. 2619-05-04 (2006) Unpub.).
These sole custody situations are rare. Virginia courts will order joint or shared legal custody in most cases, even where the parents do not get along particularly well with each other, on the basis that it is best for the child to have both parents involved in the child’s life. The parents then have to put aside their own differences and try to work together for the sake of the child.
Virginia courts also consider the best interests of the child in determining physical custody and visitation, and the laws of Virginia favor routine, meaningful contact with both parents. There is no preference in Virginia law for either parent, although the courts do seriously consider the roles that each parent has played in the lives of the child prior to the breakdown of the family unit. The parent who was the “primary caregiver” does have a distinct advantage in this regard. This is because courts are very concerned with maintaining a certain level of stability for a child whose parents are separating or divorcing. Such a situation is already quite disruptive for the child, and courts view the removal of a child from his or her primary caregiver as an additional (and perhaps unnecessary) disruption.
Courts hearing custody and visitation cases in Virginia are going to be concerned with keeping the child’s life as stable as possible during this tumultuous period, while also ensuring the child is able to maintain his or her relationship with both parents. Since every family’s situation is different, it is hard to predict what schedule the court will find is best in a particular case. In situations where both parents have played an equal role in the child’s life, which is increasingly common with two working parents, shared or joint physical custody schedules are becoming more popular. There really is no “one size fits all” answer for physical custody. Courts do not usually place restrictions on access to children by a fit parent—supervised or limited visitation is typically ordered only where one parent has a mental health issue, addiction, is a flight risk, or there has been emotional or physical abuse.
All of this means that the answer to the question “Can I get sole custody of my kids?” is not an easy one for an attorney to give. Every case is different. What can be said with certainty is that parents going through separation and divorce have to learn to put aside their personal differences and focus on what is best for the child. Virginia law favors both parents having a significant and substantial role in the life of the child, and that means that “sole custody” can be difficult to achieve.
If you are facing a child custody dispute, be sure to consult with an experienced custody lawyer in your jurisdiction. From our five convenient office locations, the custody attorneys at Livesay & Myers, P.C. represent clients throughout Northern Virginia. Contact us to schedule a consultation today.