Kevin Walter, Virginia turkey hunter, most definitely did not have custody of the charging bobcat1. The word “custody” means “immediate charge and control exercised by a person or an authority.” While the bobcat may have charged, and while Kevin was clearly not in control, a bobcat is not an animal anyone wants to take into custody. Your children, though, are another matter. Having primary physical custody of your children may be the most valuable part of your property settlement agreement.

Virginia Custody Law

Virginia’s legal code outlines all the details necessary for determining physical and legal custody, arranging visitation, and establishing child support. The details on physical custody are laid out in § 20-124.1:

“‘Sole custody’ means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.”

One parent is charged with caring for the child, that is, providing adequate shelter, clothing, food, medical care and education. That parent has primary physical custody, though legal custody may be shared with the other parent.

Having primary physical custody is a significant amount of work but is for most parents the most rewarding way to maintain relationships with children. The parent with primary physical custody gives up the children for predetermined visitations with the other parent, but the child recognizes the custodial parent’s home as the primary residence.

Winning Custody in Virginia

Many parents, on realizing they will be divorcing, place great stock in keeping the children’s lives as uninterrupted as possible. For this reason, the marital home (the family home) generally stays with the custodial parent. That parent may not be the bigger breadwinner, may not drive the more modern car, and may not be the more nurturing of the two; he or she may simply be the better choice for all the reasons a parent wins custody.

Detailed requirements for custody are in § 20-124.3, directing the court (meaning the Circuit Court judge) to consider 10 different points, including these five:

  1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  2. 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;
  3. 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;
  4. 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;
  5. Such other factors as the court deems necessary and proper to the determination.

You may look at that list and think it dictates a mommy over a daddy, but it does not. In fact, judges are directed to consider both parents equally in considering primary physical custody. You as a Virginia man have every right to petition the court for primary physical custody (and potentially retain your family home) if you can show a better “fit” for your child than your ex-wife.

Primary Custody is Worth Fighting For

Primary physical custody is worth fighting for, even if your attorney suggests you may be moving uphill against Virginia custom (if not law). Consider sole physical custody at different children’s ages:

  • Very little children need only one set of playthings, toys, and comfort devices — Instead of shared physical custody with the need to have duplicates in each home, the vital few treasured toys can “visit” the other parent and then return home with your child
  • School-age children can maintain their extracurricular routines and academic standards — Visitation schedules can accommodate sports, arts, music and other extracurricular events so your child feels grounded and connected to one place, keeping homework and study habits to maintain grades
  • Older children can keep their friends — The neighborhood stays the same; the friendship circles stay the same

The Final Say

One advantage of having primary physical custody is that the child cannot triangulate parents against each other. For most day-to-day matters, the custodial parent has the final say in many issues.

Instead of “If Dad says no, Mom will say yes,” the child gets no further than the custodial parent’s definitive “No” (or, we suppose, “Yes). While unequal, the two parents at least know who has final say in most decisions: the custodial parent. Should Junior have the sugar-frosted cereal, or the gluten-free shredded wheat? Custodial parent decides. When is bedtime? What age is too young for a cell phone? Custodial parent wins every argument, every time.

Want to feel like a winner? Want to learn more about primary physical custody, contact The Firm For Men by calling 757-383-9184, or contact us online. We can explain physical and legal custody, talk to you about joint custody, and explain parenting time schedules. To get all your family law questions answered honestly and accurately, and to protect your rights as a Virginia man, you need The Firm For Men. For bobcats, try the Virginia Living Museum.