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The Difference Between Legal Custody and Physical Custody

Physical CustodyYou’ve sat down and had the “talk.” Your marriage is coming to an end. If you have children, the first thought that goes through your mind is “what about the kids?” Filing for a divorce can be a long, complicated, and emotional process, this post will focus on custody – legal and physical.

In Virginia, there are two types of custody: (1) legal custody and (2) physical custody. Legal custody can either be “joint” or “sole” and is the parents’ ability to make major decisions concerning the child, such as medical, religious upbringing and education. Legal custody determinations are important because they let everyone involved know who has the authority to make decisions regarding the child. Physical custody can be “sole,” “split” or “shared” and is the visitation schedule the child has with each parent. Physical custody determinations are important because they control child support obligations for the parties.

Legal Custody:

Virginia Code Section 20-124.1 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.

“Sole custody” is when “one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.”

Pursuant to Virginia Code Section 20-124.2(B), Virginia courts have the discretion to award “joint custody or sole custody.” Courts are required to assure that the child or children will have “frequent and continuing contact with both parents” and “as between the parents, there shall be no presumption or inference of law in favor of either.” This Section requires courts to evaluate and determine custody not based on the gender of the parent, but rather “give primary consideration to the best interests of the child.” Almost always, Virginia courts award legal custody to both parents. In rare occasions, such as where one parent abused the child or where access to the child was unreasonably denied, courts have awarded sole custody to one parent. Awarding joint legal custody encourages parents to put aside their differences and work together to raise their child.

Physical custody:

Physical custody is the visitation schedule, now called “parenting time,” each parent has with the child. When one parent has less than 90 custodial days with the child per year, the other parent that has custody of the child more than 90 custodial days per year has “sole” physical custody of the child. If there are two or more minor children, and each party has sole physical custody of at least one child, this is considered a “split” physical custody. Lastly, if each parent has the child for more than 90 custodial days per year, the parties have “shared” custody. To see how physical custody affects child support guidelines, please read my colleague’s post titled “How much child support will I pay or receive?

In determining both physical or legal custody, pursuant to Virginia Code Section 20-124.3, the court must consider the following factors in determining “best interests of a child” for the purpose of custody and visitation:

  1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. 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;
  4. 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;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
  6. 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;
  7. The relative willingness and demonstrated 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;
  8. 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;
  9. 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
  10. Such other factors as the court deems necessary and proper to the determination.

Because each case is different, and all relevant factors must be carefully considered before determining custody, it is imperative to see an attorney upon separation to discuss and understand its implications.

If you want to understand more about how a court may determine custody and visitation, please consult with an attorney who practices in your county. Attorneys at Roop Xanttopoulos Babounakis & Klam, PLLC, regularly practice in FairfaxArlingtonPrince WilliamLoudoun, and Stafford Counties, and the City of Alexandria.

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