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.
