What about my children?

"Your children watch everything you do. Don't let them see your divorce crush you. Be strong. Focus on your goals. Be fair."

A: A Parenting Arrangement or Parenting Plan is the written document that sets forth the custody and visitation decisions for your children. Mediators often refer to your children’s custodial arrangement and visitation schedule as a “Parenting Arrangement” or “Parenting Plan”. These Plans detail the day-to-day and holiday schedules for your children as agreed to in mediation. Some Plans are highly detailed, while others are more general in nature. The Plan specifics are unique to the specifics needs of the family. Parenting Plans also set forth the decision-making rights of the mother and father. A Parenting Plan may be an independent document or be part of the mediated Marital Settlement Agreement and MSA.

A: In Virginia, courts recognize the following custody arrangements and terms:

Legal Custody

  • Sole Legal Custody: This term, which relates to decision-making only (versus where the children live), means that only the sole legal custodian’s decision is required prior to implementation of major decisions on behalf of the child. However, even in sole legal custody situations, both parents are still entitled to view their children’s medical and academic records (with some exceptions).
  • Joint Legal Custody: This term, which relates to decision-making only (versus where the children live), means that both parents must agree on all major decisions with regard to their children. There is often debate as to what the term "major decision" means and, in mediation, we often spend time crafting an individualized definition of this term for use in the parties' parenting plan. Parties still need to be aware, however, that judges have the "ultimate authority" when it comes to most matters concerning children under their jurisdiction. The judicial standard is "best interest of the children", but that term is not well-defined in Virginia law.

Physical Custody

  • Sole Physical Custody: This term, which relates to physical custody only (versus decision-making on major issues) means that the children spend the majority of their time under the care and control of only one of the parents — the “sole physical custodian.” The children may, however, also spend significant periods of time with their other parent, but usually no more than 90 full days (24 hours) per year. This is because non-primary parents, who care for their children greater than 90 full days per year, are entitled to calculate their child support obligation using a “shared calculation,” which usually lowers their child support obligation amount. While it is considered best practice for custodial care decisions to be made independent of child support matters, this is not always the case and the "90-Day Rule" is often top of mind for parties in Virginia custody cases.
  • Custodial Parent: A term used by the Internal Revenue Service (IRS) to designate a parent who cares for his or her children greater than 182.5 full days each year (50% of the year). Certain default tax privileges are automatically awarded to the custodial parent, but many of these privileges are also subject to reassignment based on the agreement of the parents in their Marital Settlement Agreement and MSA. Virginia Courts tend not to use this term, but prefer the term "primary custodian" instead.
  • Shared Physical Custody: A legal term without much clarity that signifies, generally, a custodial care situation wherein the parties' children spend a lot of time in each of their individual parents’ homes. Shared physical custody is not necessarily "50/50 custody"; but 50/50 custody is a type of shared physical custody.
  • Split Custody: This term is used in certain rare situations where the children's physical custody is split between both parents' homes, e.g., one child lives primarily with the mother and one child lives primarily with the father.

A: In Virginia, courts are required to consider the following factors when making a custody determination:

  1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
  9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
  10. Such other factors as the court deems necessary and proper to the determination. (from Sec. 20-124.3 of the Code of Virginia)

A: While issues vary from family to family, below are some key factors that parents will want to consider when making decisions with regard to their child or children’s custodial care plan. These factors should be read in conjunction with the Virginia statutory considerations (listed above in “What do the courts consider when making custody decisions?”):

  • Which parenting arrangement best promotes stability in the parent-child relationship and encourages parent-child bonding?
  • Which arrangement best accommodates the child’s current stage of development? Is there an appropriate amount of flexibility in the parenting arrangements to accommodate the child’s future growth and development?
  • Are the proposed parenting arrangements realistic in terms of the parents’ work schedules? How about in terms of the children’s academic, extracurricular and social schedules?
  • To accommodate the parenting arrangements, is the amount of transitioning necessary for the schedule going to create anxiety in the child? How about when compared to that same child not seeing his or her other parent?
  • To accommodate the parenting arrangements, how much time will be required on the road for the child? For the parents?
  • Do the proposed parenting arrangements allow each parent to get a “breather” from parenting? Is that important to the parents?
  • Is there enough time with both of the child’s parents for each of them to have an opportunity to teach, share knowledge, demonstrate views and convey values?
  • Do the parents get along well, at least when it comes to parenting the children? How about when it comes to “agreeing to disagree” on day-to-day child-rearing methods and household management tasks?

A: Below are some strategies to help your children get through your divorce with as little trauma as possible:

  • Be a role model. Be positive. Show your children that conflicts can be resolved amicably.
  • Look for opportunities to show your children that bad fortune can often be transformed into something of value... even into something advantageous.
  • Allow and encourage your children to have a meaningful relationship with the other parent – even if that means more work for you.
  • Give your children every reason you can think of to feel hopeful, secure and unconditionally loved.
  • Do not involve your children, in any way, in the grown-up problems between you and their other parent.
  • Read books and articles about the possible effects of divorce on children and make an effort to counteract those issues that concern you for the present and for the future.
  • Take a co-parenting class.