As defined by Virginia law, physical custody is the vision of the children’s time between the two parents. It could take various forms, but physical custody as a term generally refers to the time-sharing arrangements between two parents.
If you are going through proceedings involving the physical custody of your child in Virginia, it is crucial that you consult with an experienced attorney as soon as possible to discuss the various forms of custody and which ones may be ideal for your child.
Determining Primary Physical Custody
The thing most often fought over in court is who is going to have primary custody. Many think that the primary custodian has a greater set of rights or has been recognized by the judge as being the better parent, which is not really the case.
People tend to come to custody litigation with the preconceived notion that getting assigned primary physical custody makes that parent more of a parent than the other. Therefore, when parties are in a shared custody scenario, meaning both have large terms of time with their children, it is very important to parents to get the assignment of primary physical custody. This really is more about assigning a primary residence, however, than anything else.
The financial responsibilities of physical custody of a child in Virginia are calculated in a similar manner between the primary custodian and the non-custodial parent. When the court looks at making a child support determination, there will be requirements put into that order relating to both parent’s responsibility for out-of-pocket medical expenses.
Similarly, the court looks at the child support guideline to decide what the non-custodial parent or the non-primary parent should pay. This calculation involves consideration of the financial contributions of the primary custodian.
Therefore, both parties, the primary parent and the non-primary parent, have financial obligations to support the needs of the children, no matter which has physical custody of the child in Virginia.
Sole Physical Custody
This same process applies to sole physical custody of a child in Virginia. In fact, it is the case with any kind of custodial arrangement. There is an expectation in the law that both parents are going to financially provide for their children’s needs. That may be more about the children’s needs versus their wants, but both parents are required to contribute financially to living space, groceries, clothes, and things like that in the form of child support.
Typically, the court is not going to put a parent on the hook for extracurricular activities, luxuries such as a brand new bicycle, or anything like that, but both parents have financial responsibilities to meet the basic needs of their children.
Modifying Physical Custody
So long as there is a material change in circumstances and a showing that material change in circumstances of the family would impact or should impact the time-sharing arrangement between the parents, the court can consider modifying the custodial arrangement based on the new circumstances.
Custody vs. Tax Status
The presumption tax-wise for who can claim the children on their taxes as exemptions has to do with which parent has physical custody of the children in Virginia more than half of the time during that tax year. That is the legal presumption.
However, parties can agree and also have the ability to ask the court to rule on which parent can claim the child as a deduction. Often times, a court will rule or parents will agree that they will trade off years claiming the children. So long as that provision is put into a court order, parents are allowed to trade off.
The logic behind that is that if two parents are contributing financially to the needs of the children, each of them should have an option to get the benefit of having those children on their taxes. If there is no agreement, the presumption is that the parent who has the children more than half of the time gets to claim them on taxes.
Benefits of an Attorney
There are two main reasons an individual should contact an attorney when determining physical custody of a child in Virginia. The first is being able to speak to an attorney who has a lot of experience in this area and will help a parent to know the pitfalls that commonly happen and impact the children. If parents get good advice from an attorney, hopefully, they can avoid falling into those situations and impacting the children negatively.
Perhaps as important is the fact that even though the court has a specific set of factors that it is required to consider in making a custody determination, every single case is different. Having an attorney who has experience in custody litigation will be an enormous help to any parent getting ready to embark on custody litigation, because that attorney can draw from their experiences in certain cases with certain judges to advise a client on how to proceed.