What Types of Child Custody Orders are Available in Virginia?

When you file for a custody order in Virginia, you'll petition for either joint or sole custody. The judge will decide custody based on the child's best interests.
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by | Last updated Jan 2, 2020 | Published on Jan 28, 2019 | Virginia Family Law

When a couple with children decides to split, they’ll have to decide how to divide their time with the children, and who will make which decisions on the children’s behalf.

Often, couples can negotiate on their own and then have a judge finalize the order in court.

However, sometimes parents have to fight for custody over their children in lengthy legal battles.

In this article, we’ll discuss the various types of child custody arrangements available in Virginia.

Specifically, we’ll detail the differences between joint custody and sole custody as they are used in Virginia.

Joint Legal Custody in Virginia

Father And Young Son Reading Book Together At Home

The Virginia Code defines joint custody in two different parts.

First, there is joint “legal” custody, where both parents have the authority to make legal decisions about the child.

Second, there is joint “physical” custody, which dictates who the child stays with, and at what times the parents must swap custody.

For parents with joint legal custody, both have an equal say in the care and control of the child.

This is true even though the child’s primary residence may be with one parent.

For example, if the child’s school counselor recommends to one parent that the child should start seeing a therapist, the other parent must agree to send the child to therapy before they can go forward with that decision.

Similarly, if one parent enrolls the child in a particular school or program against the wishes of the other parent, a judge might decide that this action breaks the custody agreement and take appropriate action.

The same goes for medical procedures and other major decisions in the child’s life.

When might a judge grant joint legal custody?

Joint legal custody agreements are actually fairly common in Virginia.

This is because judges usually prefer to give both parents a say in how they raise the child.

Unless the judge decides that sole custody is more appropriate (as detailed below), they’ll usually grant joint legal custody to the parents.

What happens if you don’t honor legal custody?

As a parent, you have to make a hundred little decisions about your child’s life every day.

You may be tempted to make the big decisions on your own too, especially if you have a strained relationship with your ex.

However, it’s not a good idea to make major decisions without consulting the other parent when you have joint legal custody.

If they disagree with your decision, or just don’t appreciate being excluded, they can take you to court for breaking the custody agreement.

The court may force you to reverse the decision.

They may even change your arrangement to give more power to the other parent.

Either way, this is a long, expensive, and emotionally taxing process that may cause further hardship for your child.

Joint Physical Custody in Virginia

happy family father and child on meadow with a kite in the summer on the nature

Joint physical custody means both parents will share physical custody of the child.

Essentially, each parent gets to spend an equal amount of time with the child.

Further, each has an equal responsibility for taking care of the child’s needs.

In this case, each parent can negotiate how they’ll spend their time with the child in a variety of ways, as long as the court finds that division to be fair to both the parents and the child.

Sometimes the children will alternate weeks with each parent.

Alternatively, parents who live in different cities might decide that the child should spend the summer with one parent and the school year with the other parent.

Whatever the parents negotiate, joint physical custody means that the children stay with both parents for a more-or-less equal amount of time.

When will a judge grant joint physical custody?

Virginia judges tend to prefer joint physical custody, and will almost always grant some form of both joint legal and physical custody.

However, sometimes joint physical custody is not possible.

If this is the case, judges often grant “primary” physical custody to one parent, then give the other parent “secondary custody.”

Again, the idea being that the courts want both parents to remain involved in their children’s lives, and are reluctant in curtailing parental rights without evidentiary support to do so.

This often comes in the form of one parent having the children during most school weeks and an occasional weekend, and the other parent having the children most weekends, and an occasional weekday.

Sole Custody

side view of african american mother able to kiss her little daughter

There are some cases where it’s in the best interest of the child to stay with a single parent who has full decision-making powers over the child’s life.

Some situations where sole custody is more appropriate would include instances of:

  • Abuse or Neglect – This is when one parent either has a history of domestic violence or is suspected of abusing either their spouse or child. Parents who neglect to provide proper care for the child will also often lose their custody rights.
  • Substance Abuse – Alcohol and drug abuse can jeopardize your custody arrangement. This is especially true if a parent uses these substances in front of the child.
  • Mental Illness – In the case of mental illness or instability, the court will protect the child by granting the other parent sole custody.

Of course, the judge will also grant sole custody if the other parent doesn’t want custody of the child.

Just like with joint custody, sole custody can be further broken down into sole legal and sole physical custody.

Sole Legal Custody

When a parent has sole legal custody, they have the legal right to make decisions, even major ones, without permission from the other parent.

They may still go to the other parent for input, but the final say is up to the parent with sole legal custody.

Sole Physical Custody

When a parent has sole physical custody, it doesn’t mean that the other parent never sees the child.

Even though the child’s primary residence is with one parent, the other parent will still have visitation rights as directed by the court.

Generally, these visitation rights are outlined in a separate visitation agreement.

Such an agreement could include any combination of the following scenarios:

  • A detailed visitation schedule, where one parents gets to see the child on a regular schedule every week or month.
  • A “reasonable” visitation schedule, which lacks details and lets the parents work out a fair schedule on their own.
  • Supervised visitation, where the child’s safety requires that one parent supervise the visitation of the other.
  • No visitation, where one parent is barred from seeing the child at all.

In most cases, you will generally work out a visitation schedule amongst themselves, then submit that agreement to the court for approval.

However, if you’re unable to decide on a schedule the court will help negotiate visitation.

Negotiating Outside of Court

Diverse business partners arguing about bad contract at meeting in lawyers office, disgruntled clients disputing about scam fraud in law firm, cheated investors having claims dissatisfied with loan

When a relationship ends, it goes without saying that there may be hard feelings between you and the other parent.

However, it’s best if you can negotiate child custody terms on your own, or through mediation outside of court.

If you’re able to do so, there are many benefits to working out an arrangement before you go to court:

  • Time – Negotiating custody in court takes an immense amount of time. You should consider the work you’ll have to miss, babysitters you’ll have to hire, and how many days you’ll have to block out of your calendar for those court dates.
  • Money – The more time you spend in court, the more court and attorney’s fees you’ll pay.
  • Emotional Toll – Working with a mediator may be hard, but fighting it out in court is exponentially harder. Court battles will take an emotional toll on the parents and the children.
  • Brownie Points – Courts love it when parents can work things out amongst themselves. When the court sees that you’re working together with the child’s best interests in mind, it becomes much more likely that the judge will honor your wishes in their final decision.


Two pretty smiling kids embrace under blanket

There are two major types of custody arrangements in Virginia: joint custody and sole custody.

Each of these arrangements can be further broken down into legal and physical custody.

When planning out your custody arrangements, it’s critical that you hire an experienced family attorney who can look out for your interests in the case.

Especially in cases where children are involved, court battles can become ugly quickly, so you’ll want to have experienced counsel on your side on your day in court.

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Jessica Wildeus

Jessica primarily assists clients with criminal and family law needs. She is committed to a client-centered practice and to equipping her clients with the knowledge they need to navigate the legal system effectively. Read More.

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