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Child Custody & Visitation in Loudoun County, VA

Legal Custody versus Physical Custody and Visitation: Understanding the Difference

When confronted with a custody dispute, it is best to understand the situation in the terms of Legal Custody and Physical Custody/Visitation. Legal Custody is primarily concerned with the decision making authority a parent has regarding his or her child, whereas physical custody or visitation has to do with which parent is responsible for the physical care of the child at any given time.

Types of Legal Custody

In Virginia, there are two types of child custody, Joint Legal Custody and Sole Custody.

Joint legal custody is a situation 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.

Sole custody affords one parent the primary responsibility for the care and control of the child. In this situation, the parent with sole custody is in charge of the major decisions in the child's life, such as decisions about religious upbringing, medical care, and education opportunities. Day-to-day decisions such as what a child eats, when he or she goes to bed, who that child sees is still left to the parent who has physical custody of the child at that time.

The courts strongly favor joint legal custodial arrangements, but will consider awarding one parent sole legal custody in certain situations, including (1) when the parents are unable to effectively communicate to the point that important decisions are not being made; (2) one parent is incapable of making decisions; (3) one parent has a history of making such poor decisions that adversely impact the child's best interest; or (4) one parent has a demonstrated expertise in a child's special needs.

Regardless of the nature of custody awarded, courts are charged with assuring minor children maintain frequent and continuing contact with both parents. It is best for parents to follow some basic do's and don'ts of child custody and visitation to ensure you are acting in the best interests of your child.

Types of Physical Custody and Visitation

In Virginia, there are two types of physical custody, Shared Physical Custody and Primary Physical Custody. The distinction is particularly important because the designation may have a direct impact on child support.

Shared Physical Custody is a situation where both parents have at least 90 statutory days with the child(ren). A statutory day is defined as 24 consecutive hours. A parent is also awarded a 1/2 day if he or she has the child(ren) overnight, but for less than 24 consecutive hours. There are many custodial schedules that permit the parents to have a shared physical custody arrangement and it is important for families to find one that promotes the children's best interests.

Primary Physical Custody is a situation where the child(ren) live with one parent and visit with the other parent less than 90 statutory days over the course of the year.

How Courts Determine Child Custody and Visitation

In most cases, parents, often through their lawyers, negotiate child custody and visitation without court intervention. However, in some situations, the parents cannot come to a negotiated settlement. In these cases, the court makes decisions about legal and physical custody as well as visitation. Courts use a “best interests of the child” standard in determining what is the appropriate solution to questions about visitation and custody.

In Virginia, the courts have a list of non-binding factors they consider when evaluating what is in a child's best interests, including:

  • Age of the child
  • Physical and mental condition of the child
  • Age, physical, and mental condition of each parent
  • The current relationship between each parent and the child
  • The needs of the child, including needs related to siblings, peers, and other family members
  • Roles each parent plays in caring for the child
  • Each parent's propensity to support the child's relationship with the other parent
  • The willingness of each parent to maintain the relationship with their child
  • Each parent's ability to cooperate to resolve disputes regarding issues related to the child
  • A child's preference
  • Any history of abuse, and
  • Other factors the court deems appropriate.

How to Get a Modification of a Child Custody or Visitation Order

For better or worse, the state of Virginia does not allow parties to petition for a modification of child custody or visitation just because they do not like the ruling. Instead, child custody and visitation can only be modified in situations where there is a material change in the circumstances of the parent or the child. Under the law, a “material change” is any situation wherein the circumstances relating to the child impact the child's well-being, development, health, and/or safety.

However, a material change alone is not sufficient for a modification of child custody or visitation. In addition, the modification must be in the best interests of the child. Consequently, once a material change in circumstances is recognized, the court must still review the factors listed above to determine whether the change in circumstances is sufficiently great that the re-evaluation of the factors leads the court to a different conclusion about visitation, custody, or both.

If You Have a Child Custody or Visitation Issue...

If you have a child custody or child visitation issue, contact The Law Office of Charles F. Koehler, P.C. We work closely with our clients to provide competent, case-specific legal representation in all issues involving child support and child visitation. Family law can be complicated. Our firm has the experience you need to proceed in family court with confidence. Contact us today at (703) 669-5644. We look forward to talking with you.

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