Custodial parents in Virginia truly represent the original meaning and heart of the word, “custody.” Starting around the 15th century, the word meant “guarding, watching, keeping.” That’s what custodial parents do, though the term makes the non-custodial parent sound like a freeloading oaf. We know you’re not. But what rights do you have as the non-custodial parent? Can you sign Little Louisa up for Wee Whelps Daycare? Enroll Junior in junior high school?
Custodial Parents & Types of Custody
Virginia family law recognizes only two types of custody of children (defined as persons under age 18):
- Physical Custody — defined under Code of Virginia § 20-146.1 as “the physical care and supervision of a child”
- Legal Custody — defined as “the care and control of the child and authority to make decisions concerning the child”
Physical custody pertains to the child’s primary residence, the physical location where the child receives nourishment, clothing, bathing and grooming, toileting, and all the aspects of daily living.
Physical custody can be joint, shared, or sole, depending on the property settlement agreement you and your ex-spouse signed.
Legal custody refers to decision-making by a competent adult on behalf of the child:
- Where should Little Louisa go to daycare?
- Should Sammy spend summer at swim camp?
- Where is Junior going for band lessons?
- When will Tiny Tim need to see the doctor, dentist, or mental health professional?
- Which religion will be right for Darling Darla?
In an emergency, the legal custodian makes the medical decisions, no matter how wrenching they may be.
The custodial parent can be either parent, for either type of custody. Both parents can share custody, for either type of custody. Typically in Virginia, however, for practical purposes many couples divorce with one taking primary legal custody.
Since everything regarding Virginia’s children must legally be done “in the best interests of the child,” one parent is blessed (or saddled) with the weight of final decisions on medical, educational, and religious issues.
What Makes Non-Custodial Parents … Non-custodial Parents?
If one parent has sole physical custody of a child, the other parent is the non-custodial parent. The child spends less than half her or his time with the non-custodial parent, which could be any permutation of schedules set up in the parenting plan.
If one parent has sole legal custody of a child, the other parent has no legal custody of the same child. Only the parent with legal custody can make decisions for the child, and that includes enrolling the child in daycare or school in Virginia.
Enforcement of the Rules
Daycare operators and school districts have long experience dealing with custodial issues. Both institutions are legally responsible for the care and safety of a child within their walls, since they are acting “in loco parentis,” meaning in place of the parent.
As an example, here is the Virginia Beach City Public Schools regulation on “custody students” and enrollment:
- Any person seeking to enroll a “custody student” must present evidence that the student resides with a City of Virginia Beach resident who has legal and/or physical custody of the student during the school year. Current and certified court orders must be presented to establish legal and/or physical custody. Natural or adoptive parents who have not obtained a court order regarding custody will be presumed to have full custody of the student but may be required to produce evidence that the student resides with them for three or more school nights each week during the school year. Enrollment or continuing attendance may be denied until appropriate evidence is provided.
A non-custodial parent may attempt to get around regulations and laws regarding legal custody, but such a move is likely to result in more legal troubles and, potentially, loss of any contact with your child.
Disagreements Over School Enrollment? Call The Firm For Men!
How should you handle a disagreement over daycare or school enrollment? Through the Virginia courts. Your family law attorney can petition the court to amend a divorce decree or property settlement agreement. Meanwhile, abide by the existing court order. Virginia judges do not take kindly to having their orders disregarded.
In reaching a decision, the judge will keep the best interest of the child paramount. If you want to enroll Little Louisa at a daycare a mile from your house but 19 miles from the custodial parent’s house, that will not pass a sniff test.
Two things not to do? Enroll your child without the custodial parent’s written permission, and fight with the custodial parent in front of your children. Let your family law attorney work for a legal resolution. Otherwise, you could be looking at the alternate definition of “custody,” meaning “restraint of liberty, confinement.”
Daycare may not seem related to family law, but when you are adapting to a new life after separation or divorce, everything is related to family law. Let us help you. Contact us today at The Firm For Men. We have years of experience with child custody, legal custody, child support, separation, divorce, and much more.
