Forms of Child Custody in Virginia

In addition to the many elements that are considered in a child custody agreement, there are also many different forms of custody that two parents may share ranging from the primary custody involving one parent to joint custody with both parents. Depending on the specific situation and the best interests of the child, a Virginia child custody lawyer can help determine what form of custody may be most preferable and ensure both parents are aware of what this entails.

It is also important to note that a custody order can be modified by the courts at any point before the child turns 18, however, there has to have been a material change in circumstances that impacts the custodial arrangement between the two parties.

• Physical Custody
• Legal Custody

Types of Custody

The most common scenario that arises between parents is having joint legal custody of their children, meaning they both have the ability to make major decisions. Another common type of custody is primary custody to one parent with visitation rights to the other or shared custody arrangements.

As family structures develop and many families have two, full-time working parents, joint legal custody arrangements are becoming more common. That does not necessarily mean 50-50 time-sharing, but something that is closer to that than one parent having primary custody and the other having every other weekend with the kids.

Shared

Shared custody refers to the physical part of custody, not the legal part of the custody. It refers to the time sharing of the children between the parents. In Virginia, shared custody is a term that describes a custodial arrangement where the non-custodial parent, the parent who has less of the time, has the children for 91 days or more out of the year.

The impact in Virginia of shared custody relates to how child support is calculated. It does not necessarily mean that the rights of the two parents as to physical time is any different than it would be under another kind of physical custody arrangement.

Bird’s Nest

The more common term is nesting in Virginia. Nesting is a way that some families will put together a time-sharing arrangement for their children. The reason it is called nesting is because the main principle of this kind of a custodial arrangement is that the children will remain in the same home. Instead of the children going back and forth between households as typically happens in a custody arrangement, with nesting the parents go back and forth. So, the children have the opportunity to remain in the same home no matter which parent they are with.

When it is the mother’s custodial time, mom will come and live in the home with the children. When her time is up and it is time for the other parent to start their custodial time, then that parent will move into the home.

In these situations, what happens between the parties is that they share an outside space, usually a smaller apartment, and trade off living between the home where the children are and a separate space to allow the children not to have to go back and forth between homes. Alternatively, each parent finds their own space in which to live when the children are with the other parent.

Joint

Joint custody in Virginia refers to legal custody, meaning that both parents have equal ability to make decisions for the children. The impact of that is that if one parent has a major decision that they want to make for their children, the other parent has to be onboard with it.

It is a situation where both parents have to talk through major decisions related to their children and come to some sort of agreement. Emergency situations are a bit different, but major decisions have to be done between the two parties. Neither party has the ability to make a decision over the other.

Sole

Sole custody is more frequently used in the context of legal custody in Virginia. It means that there is one parent who has the ability to make major decisions for the children. Even where sole legal custody exists, parents are supposed to, in most circumstances, have meaningful conversations about major decisions that are to be made relating to the children. In a custody scenario, the parent with sole legal custody is the one who has the right to make the major decision that relates to the child or children.

Split

Split custody is a term that has more legal meaning when it relates to child support. Split custody is a situation where there are two or more children and the children do not live in the same place.

An example of a split custody scenario would be when the parents have two children, and one child lives with the father primarily, and the other child lives primarily with the mother. That would be a split custody scenario.

In a split custody situation, the child support guideline would be worked out a little differently than the traditional model, because it takes into account that each parent is incurring expenses for the child who is in their respective primary care.

Third-Party

Third-party custody is a term that is used when a non-parent has custody of the children. So, third-party custody could be that a grandparent has custody of the children, or an aunt, uncle, or some other non-parent family member.

On rare occasions, a person can have a non-family member have third-party custody. That would be somebody who is very close to a child and has had regular interactions with the child. In rare occasions where parents are unable to care for the children properly, the court has the ability in certain cases to award custody to a non-family member.

So, third-party custody refers to any person who is not a biological or adoptive parent of a child who has some sort of custodial rights to that child.

Determining Forms of Custody

The form of custody that parents will want to obtain depend on the certain elements present in each case. Some psychological experts who deal with children primarily talk about frequency of contact with both parents, particularly with very small children.

When a person has infants or toddlers, or kids at a young age, many experts have said that it is important for these children to have regular and frequent contact with both parents. In a case like this, that person might have a custody scenario where the children are with one parent for a couple of days and then with the other parent for a couple of days. Alternatively, there could be a lot of mid-week visits for the non-primary custodian with the children, so that the children have the ability to see both parents regularly.

Non-Custodial Parents

A non-custodial parent is another term that is frequently used to refer to the parent in the household where the children spend half of their time. It is a term that people oftentimes do not appreciate, which is understandable because it makes it sound like that parent has less of a right to the children. This is not necessarily the case.

Non-custodial parents have all the same rights and access to their children and information related to their children, assuming that the parents continue to share joint legal custody. A non-custodial parent is simply a term that has come into common use that refers to the parent who the children are with less than half of the time.

Changing a Custodial Arrangement

Examples of elements that could influence a custodial agreement could be if one party remarries and has the new spouse move in with them. It could be some sort of changing need of the child, such as education or emotional development. Unless a person can show the court that there has been a material change that should impact the custodial schedule or how legal custody decisions should be made, the court will not modify the custody order.