Most child custody orders in Virginia grant “joint legal custody” to the parents then go on to say that “primary physical custody” is granted to one of them, usually the mother. The next sentence will typically say that the other parent (usually the father) will have “reasonable and liberal visitation.” This is the formula I see most often but there are lots of others.
“Legal custody” refers to the right to be consulted on the major decisions about who the child is to be raised. Decisions about private or public education, elective surgery, mental health treatment and the like are choices the parents have the legal right to make for their child. They are considered so important that the parent with visitation needs to be consulted. However, if the parties disagree, the parent with physical custody will have the final say unless one party asks the court to intervene and make the decision.
“Physical custody” refers to the time the child is to be in the care of each parent. Primary physical custody is generally understood to mean the child will live with the custodial parent 275 days each year or more. If the other parent will have the child in their care more than 90 days a year then the phrase used for the arrangement is “shared physical custody.”
If the phrase “shared physical custody” is used, the order has to say something about how much time each parent is going to have. If the parents agree to divide the time equally, I typically write they will have “shared physical custody with the time divided as nearly equally as possible and the exact schedule to be decided by the parties.” This will work if the parties get along and sort out the details without a lot of conflict. Other plans include a week with each parent or dividing the week and alternating the weekends.
If the relationship isn’t that good but the parents still want to do equal time, it’s best to put the schedule in the court order. They can always agree to vary it when they need to. The schedule reduces the need for them to talk to each other and the opportunities for things to degenerate into an argument.
If one parent has primary physical custody the other party’s time is called “visitation.” The 1950’s standard visitation formula was alternate weekends, dinner on Wednesday night in the off week, a chunk of time in the summer and a fair sharing of the holidays. If the parties get along well, it’s fine if the order just says “reasonable and liberal visitation.”
If they don’t, and especially if the custodial parent is high handed about access to the children, it is important that the order spell out the details of exactly when the other parent is to have visitation. The way these orders are enforced is through the contempt process. If it is vague it is hard to prove a violation. So, for example, the order will say that visitation begins at 6:00pm on Friday and ends at 6:00pm on Sunday. That way it’s easy for the judge to know whether the parties followed the order or not.
