Child custody 101: understanding custody laws
If you’re in the middle of a custody case, or if you have recently been awarded custody of your child, you might be wondering what are my rights; what should I expect? The first thing to realize is that child custody is never final. So, what do you need to know about custody laws?
Legal custodyA parent who has legal custody of a child has the right and obligation to make or participate in major decisions about the child's upbringing. This is basically the right to parent. A parent with legal custody can and must participate in decisions about major things like: school, religion, education, medical care, where the child lives, and perhaps, college decisions.
It is common for the court to award joint legal custody to both parents. Sole legal custody does happen, but usually only in cases where one parent is incarcerated or abusive, or where a parent consents to this unusual arrangement. Another situation in which a court may award sole legal custody to one parent is the unhealthy situation in which the parents simply cannot or will not work together to make decisions. The court must then decide which parent must manage the children's lives unilaterally, in essence cutting out one parent. This is unfortunate for everyone involved.
Courts are typically loathe to award sole legal custody: they prefer joint custody, as it is almost always better that both parents are involved in decision-making for a minor child. When parents share legal custody, both have the right to contribute to the child's upbringing, and, in theory at least, the child benefits.
Legal custody gives you a say in how to raise your child, even if he or she is living primarily with the other parent.
Physical custodyPhysical custody of a child simply means that the child lives primarily with this parent. Physical custody may take a variety of forms, including:
Shared: Shared physical custody is awarded when the child is expected to spend significant amounts of time with both parents. If the child lives overnight more than 90 days per year with a parent, the parents are shared physical custodians. Judges may decide shared physical custody is in the child's best interest when the parents live near one another and can relate to each other amicably, and this arrangement may provide the child a somewhat normal routine, under the care and vision of both natural parents.
Primary: Primary physical custody is an arrangement in which the child spends the majority of the time with one parent and the other typically has a limited but regular visitation schedule. Most Attorneys no longer use the term "visitation" to describe the non-custodial parent's time with the child: it is simply known as "parenting time" or a parenting plan.
Sole: Typically granted if one parent is deceased or incarcerated for a significant period of time, or if a parent is abusive or dangerous toward the child or to children in general.
It's important to note that if you have physical custody, you must still honor the visitation rights (parenting time) or shared physical custodial time of the other parent. If you do not, you may well endanger the physical custody arrangement you now enjoy. If you do have a valid and significant reason not to want to honor the other parent's parenting time, you must immediately seek to have your current arrangement changed by consent of the parents, through mediation, or by going back to court to seek a modification.
Honor the other party's parental rightsIn any type of shared custody arrangement, whether you're referring to physical custody or legal custody, both parents have an obligation to honor the other party's parental rights. This means that if you have physical custody of the child, but you share legal custody -- you have to honor the other party's right to contribute to decision-making about the child's life. In the same way, you must also honor the other parent's parenting time or other shared custody/visitation arrangements.
If you don't honor the other party's custodial rights, he or she may take you to court to hold you accountable and to enforce the formal custody agreement. When that happens, you must be able to show clear cause that your failure to honor the custody agreement was in the child's best interest. For example, if you refuse to honor the other party's right to decide on a child's medical care, you must be able to show that your refusal was in the child's best interest.
If you can't demonstrate that your failure to honor the other party's parental rights was in the child's best interest, the court will typically enforce the custody agreement as written. If this happens, you may be responsible for the legal fees of the other parent. If your withholding is significant, the other parent may seek to change the custodial arrangement, and you may lose what you have.
In Virginia, the court must consider several factors before it awards custody to a parent, one of which is that parent's commitment to encouraging the child's involvement with the other parent.
Don't simply refuse visitation when your ex is behind on child supportWhen the ex falls behind on child support, some parents rationalize that it's "ok" to refuse visitation. After all, if the ex isn't helping to support the child, why should he or she be entitled to interact with the child? However, that's not how custody laws work, and parents who refuse visitation when the ex is behind on child support are not complying with the terms of the custody agreement.
There's a separate legal remedy for non-payment of child support that isn't related to visitation, so parents should understand their responsibilities before taking the custody agreement into their own hands.
Visitation and child support are not relatedIt's important for both parents to understand that visitation and child support are not related. Child support isn't a "fee" that one parent pays in order to get access to the child; it's intended to be a way to prevent the child from being deprived of one parent's income if that parent isn't living with the child. It's intended to be a legal remedy to give the child the benefit of both parents' incomes.
If one parent falls behind on child support, that doesn't invalidate the custody agreement - so the custodial parent isn't legally permitted to withhold visitation on the grounds of non-payment of child support.
If you want to change visitation, modify the custody agreementVisitation is a part of the custody agreement that's set out when custody arrangements are made. If you want to change visitation, the only way to legally do so is to modify the custody agreement. If the other parent is entitled to visit the child according to the custody agreement, the custodial parent isn't permitted to withhold those visits under any circumstances - except if the child is in danger. In those circumstances, though, the custodial parent should seek a protective order and should seek to modify the custody agreement.
The court may order supervised visitation in cases where the child may be in danger, but courts are reluctant to deny visitation altogether - and custody laws prevent one parent from unilaterally making that decision without court backing. Otherwise, they risk being in violation of the custody agreement - even if the ex is behind on child support. Modifying the custody agreement to change the visitation schedule requires a trip back to court, and you may be required to prove that the visits aren't in the child's best interests if you are attempting to reduce the frequency of visitation.
However, if you're just attempting to "punish" the ex for not paying child support, or withhold those visits in an attempt to get the other parent to pay child support, the court will not consent to modify the custody agreement to reduce visitation. There are separate remedies for non-payment of child support, and those remedies are not related to visitation.
Steps to take if your ex is not paying child supportIf the ex isn't paying child support, there is a process to take legal action to enforce the child support agreement. First, discuss the non-payment with the other parent and attempt to reach an agreement. Resolving non-payment may be as simple as giving the non-paying parent a temporary payment agreement in order to get caught up again after some financial setback.
If you're unable to compromise with the non-paying parent, you'll need to go to court to enforce the child support agreement. This may come in several forms, including: An income-withholding order (garnishing wages); An insurance intercept (seizing judgments and settlements, including personal injury and workers' compensation awards).
If these remedies don't resolve the issue, and the noncustodial parent continues to not pay child support, he or she could face a range of serious consequences, including: A finding of civil contempt; Jail for up to six months; Probation for up to six months; A fine of up to $500; Seizure of bank accounts; Seizure of federal and state tax returns; Suspension of licenses; Passport denial; Liens against real estate; Interception of lottery winnings; Credit bureau reporting; or, having his/her name published in the newspaper as a delinquent parent.
These legal remedies are designed to encourage payment of child support, and to provide consequences for a parent who doesn't pay child support. It's important for both parties to understand that child support and visitation are two unrelated legal issues, and that non-payment of child support doesn't entitle the custodial parent to deny visitation. Visitation can only be modified by changing the custody agreement, which requires a trip to court - and the court won't reduce visitation for a parent who is behind on child support, since there are other legal remedies to resolve non-payment of child support.
The main pointThe most often ignored or misunderstood maxim in regard to child custody is the "best interest of the child" standard. courts (as should parents) will set up an arrangement, using legal and physical custody, which will be the court's best effort to protect the best interests of the child or children.
Although a court will surely attempt to set the post-divorce family as a whole on a workable, comfortable path, the best interest of a parent or both parents is of only secondary concern -- as it should be. The children were likely not involved much in the decision of the parents to separate and divorce, but the parents (and the court if necessary) must be sure that their interests are represented in the post-divorce lifestyle decisions that surely affect them, and may affect them for much longer and more deeply than many parents may understand. It is difficult for hurting, angry, or disillusioned spouses to see beyond the painful adult issues during a trying divorce, but that is exactly what parents must do.
You can. Children first.