What is the difference between legal child custody and physical child custody?

Many times we have a consultation with a parent who says, "I want sole custody."  What that means depends on the parent, but often they are referencing the time the child physically spends with each parent.  It is important to understand that in Virginia there are two general categories of custody.

 Legal Custody:
Legal custody is the right to make important decisions on the child’s behalf such as medical decisions and decisions about their schooling and education.  Legal custody is not the every day decisions like what the child eats or what time they go to bed. Parents can have joint legal custody or one parent may have sole legal custody.  Keep in mind that under Virginia law just because one parent may have sole legal custody, access to information and records by the other parent is still permitted.  Under Section 20-124.6, "Notwithstanding any other provision of law, neither parent, regardless of whether such parent has custody, shall be denied access to the academic or health records of that parent's minor child unless otherwise ordered by the court for good cause shown or pursuant to subsection B."

Physical Custody:
Physical custody is a determination of where the child will live and with whom.  The three basic types of physical custody are sole/primary custody, shared, or split custody.  Sole or primary custody is when one party has the child for a large majority of the time and the other party has the child for visitation.  Shared custody is where the parents or guardians of a child share custody of the child based on a schedule where the child spends time with both parties (keep in mind it may or may not be 50/50 but it is more than every other weekend).  Split custody is where there are multiple children from two parents and one child may spend time with mom while the other child spends time with dad.

When considering custody, it is important to focus on the substantive meanings and not just the labels as that will better help you get to a scenario that works for your children.   How does the child's schedule impact the physical schedule?  How does each parent's work schedule impact the child's physical schedule?  What is each parent's proximity to the other?   Section 20-124.3 of the Virginia Code outlines all of the factors that a court is required to consider.  There is no set way of dealing with physical custody; each family is unique and a schedule should be formulated to meet that family's need and the child's best interest, which is paramount.

How Can I Co-Parent with My Ex-spouse?

1.   Remember your children are a combination of both parents.

2.  Be respectful of each other, even if you disagree with each other.

3.  Share information with the other parent, especially what is going on at school or at doctor visits as well as general developments in your children's lives.

4.  Create a shared calendar online so that important information is accessible.

5.  Try to make decisions together about your children.

6.  Come up with common rules and expectations so that your kids cannot play off each of you.

7.  Go to activities, events, school programs.  Even if you don't sit together, both of you being there is important to your children.

8.  Support your children's love of the other parent.

9.  Seek co-parenting counseling.

10.  Understand your rights and your obligations as a parent and your role with your child and with the other parent.  Understand all dispute resolution options so you make an informed decision about how you may seek to reach a determination on parenting decisions that the two of you cannot decide on your own.

Can my spouse get my inheritance in a divorce?

In a divorce proceeding, Virginia divides assets and liabilities (property) using the concept of equitable distribution.  The first step in that process is to classify the assets as either marital, separate or hybrid (part-marital/part-separate).   An inheritance usually starts out as separate property under the definition laid out in Section 20-107.3:  Separate property includes all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party.  Then, any property acquired during the marriage in exchange for or from the proceeds of the sale of separate property remains separate property, provided that such property acquired during the marriage is maintained as separate property.  Also, "income received from separate property during the marriage is separate property if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions."

Some times, however, we see situations where, during the marriage when there are no signs of trouble, inherited funds are put into joint bank accounts/investment accounts, used to buy jointly titled vacation properties, pay down a jointly titled home, etc.   If inherited money is commingled, it can lead to reclassification of the separate property as marital property and can lead to the other spouse making a claim to that inheritance.  The spouse having received the inheritance is then left with the need to prove that the commingled property can be traced to a separate asset in order to retain its original classification and eliminate the spouse's ability to seek a portion of it.  This is a document intensive process and depending on how far back the inheritance was received and whether records were kept it may or may not be successful.  

There are many provisions in the Virginia Code that outline what needs to be done to preserve the treatment of an inheritance as separate property.  Some parties seek prenuptial agreements in order to try to head off claims to inheritances; other parties make sure to keep inherited funds completely separate and not retitled to joint assets.   Talking to a family law attorney can help you understand your rights and how to protect your inheritance for your future.

What happens to my assets if I die during a marital separation?

In Virginia, parties are considered to be separated when they no longer live together as husband and wife and when there is no possibility of reconciliation and one party has the intent to separate.   Separation is not a divorce; a divorce occurs upon court order.  So, what happens if a spouse dies while the parties are separated but not divorced?  The separation itself has no effect itself on inheritance rights by the other spouse.  If you die without a will, your spouse will inherit your estate.  If you die with a will, your spouse may still be entitled to a portion of your estate (but it will be less than if you have no will at all).  A separation itself does not revoke previous wills; you need to do a new will if you intend to make changes as it relates to your spouse.  A separation itself does not necessarily revoke powers of attorney or advance medical directives; if you no longer want your spouse to have those abilities, you need to have them changed.  A separation itself does not automatically revoke beneficiary designations; you need to change them where permitted (some retirement plans and other accounts may not let you change beneficiaries without spousal approval).  Even after a divorce, do not assume that beneficiary designations are automatically revoked.  Check with each plan, policy and account to be sure you have taken all steps to protect yourself.  It is important as you proceed through a separation and divorce to also be talking to an attorney who does wills, powers of attorney, advance medical directives and estate planning to be sure you are protecting all aspects of your future.

What effect does divorce have on children?

Divorce can have a rippling effect.  Determining custody, learning how to co-parent separately are just two issues that face parents in a divorce.  To learn more about how divorce can affect children, come to this great program!http://wtvr.com/2015/01/08/divorce-the-rippling-effect-is-the-next-topic-in-the-rva-parents-forum-series/

Can I require my spouse to help pay for college for our children?

Some college decisions have started to come out; others will begin arriving as Spring approaches.  And, with those decisions, also comes discussions and decisions about how to pay for tuition, room, board, books, fees, etc.  Virginia law regarding a parent's obligation to pay for college educational expenses is generally that there is no authority to mandate a parent to pay for such expenses.  Child support ends when a child turns 18 and graduates from high school or when the child turns 19 (with some very limited exceptions).  So, what are divorced/separated parents to do?  Schools differ on how it treats income from separated/divorced parents and how it treats income if either parent has remarried  FAFSA forms may require the cooperation of parents to provide financial information.  In some cases, parents cooperate to get these matters addressed.  Other times, the emotions of the separation/divorce reappear; if there is a lack of trust between parents, it can be difficult to want to share information required by the financial entities.   So, if your child's decision for college depends on financial ability to pay, what is he or she to do if his/her parents are not willing to provide necessary information?  Your child's future is before you; it is a time to celebrate the achievements that have led to the opportunity to attend college.  Understanding the dynamics that underlie the financial issues of this exciting time, and realizing that a Court's power to assist may not exist, takes forethought.  It may take the ability to put aside old feelings and cooperate.  It may require the help of attorneys, mediators, college planning counselors, financial planners.   Plan ahead and seek out assistance if needed.

Hall and Hall is excited to host and present at the upcoming parent forum at the Children's Museum of Richmond