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Options for Child Custody in a Divorce

Approximately 19 million children in the United States live with just one parent, per the U.S. Census Bureau; this statistic doesn’t mean that both parents can’t or won’t play an important role in their child’s life even when going through a divorce. Working through the issues and options to determine child custody in court during a divorce proceeding may seem daunting, but the process is designed to help determine the best interests for the child or children – whether that is being raised primarily by one parent or guardian or by opting for a cooperative joint custody arrangement.

Learn below about various child custody arrangements that are available during a divorce proceeding in Virginia.

Physical vs. Legal Custody

What is the difference between physical and legal custody? Before filing for divorce, many couples may not realize there’s a distinction between physical and legal custody. The difference between the two is relatively straightforward. Physical custody describes the location of a child’s primary residence and whether your child or children physically live with you in your home subject to the other parent’s visitation schedule. Legal custody, on the other hand, refers to the right and responsibility for care and control of a child or children and the ability to make decisions on such child or children’s behalf until they reach legal age. Examples of such decisions can include selecting a school and healthcare provider, opting for non-routine medical and dental treatment, administering medications and more.

Sole Legal Custody vs. Joint Legal Custody

Sole legal custody is a custody arrangement where a parent or guardian has full legal responsibility to make decisions for their child. Courts in Virginia always put the best interests of the child first. That means that, in nearly all cases, courts will endeavor to reach a custody agreement that enables the child to have an ongoing relationship with both of their parents. "The 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," Virginia law states.

While this means that joint legal custody is often favored, it depends on the circumstances and whether parents have demonstrated an ability to make decisions regarding their child together and are able to do so moving forward. A court has the power to award sole legal custody to one parent or the other, or to award a parent sole legal custody on a particular issue (such as healthcare decisions) if it deems appropriate based on the evidence presented, including how parents have historically made decisions regarding their child.

Joint Legal Custody, if ordered by a judge or agreed upon by the parents, means that the parents will jointly share decision-making authority for their children.

A child custody lawyer may recommend alternative arrangements in extenuating circumstances. For example, if one parent has a history of violence, alcohol abuse, drug abuse, dangerous mental instability or neglect, the other parent may be awarded sole legal custody and/or the other parent’s time with the children may be subject to certain protections.

Primary Physical Custody v. Shared Physical Custody

As previously pointed out, Virginia law favors having both parents actively involved in their children’s lives if it is in the best interests of the children. While one parent may be awarded primary physical custody so that the children primarily reside with that parent, the other parent is usually awarded a time sharing schedule with the children that includes weekdays, weekends, holidays and summer vacation time. There is also the option for the parents to have a shared physical custody arrangement allowing them to share physical and custodial care of their children and in which the children more equally split time between their parents’ homes. Parents can work with family law attorneys or child custody lawyers to establish an arrangement where they can legally and amicably co-parent their child. To keep things as simple as possible, in this situation both parents generally have both shared physical and joint legal custody at the same time.

Split Custody

Split custody is an entirely different situation specific to parents with multiple children. The term split custody applies to situations when both parents have sole physical custody of one or more of their children. This means that siblings are not living together, rather they’re staying with different parents. This is an uncommon circumstance that many courts discourage, preferring to keep siblings together whenever possible.

Third-Party Custody and Visitation

Finally, third party custody describes situations when legal and/or physical custody is awarded to someone other than the child's biological parents. In many cases, such third party custody involves the child's grandparents or another suitable relative who seek to step in when the child’s parents are absent or have emotional, physical or addiction issues that render them unable to safely parent the child. Relatives work closely with child custody lawyers to gain custody in the event of both parents' or a parent's death or if the court deems their biological parents unfit to raise them. As the biological parents are favored under the law, this is not a common situation and establishing the proof necessary to be awarded custody in lieu of a parent can be difficult. Third parties can also seek visitation with a child, either with or without a parent’s support, which involves a lesser burden of proof than requesting an award of custody.

Child custody can be a difficult subject to talk about and navigate on your own. Consult with a child custody lawyer about the factors that help determine custody arrangements, like the parent-child relationship, the child's preferences and age, parental stability, and more, to determine the best outcome for your situation. Our team of family lawyers and child custody lawyers at Hite Kaminsky Family Law is here to help – contact us today to get started.