In 2013 (the latest year for which data are available), according to Virginia’s Department of Health,1 Virginia’s courts granted 29,465 divorces and annulments, with the largest majority going to childless couples (16,756). The remaining 12,705 decrees involved children. How many of these divorces resulted in fathers getting sole custody?
While statistics for Virginia are lacking, we can extrapolate from the United States Census,2 which found that 17.5 percent of custodial parents were fathers. This means, roughly, you have a one-in-six chance of getting sole custody of your children in a Virginia divorce proceeding.
Is It Worth It to Fight for Sole Custody? Short Answer: YES.
So, while the odds are against you in general, sole paternal custody does happen, just with a lot less frequency than shared custody or sole maternal custody. So why is that?
Another short answer: tradition, not law.
Legally, Virginia courts are neutral, favoring neither the father nor mother for full custody. The standard is the “best interests of the child,” not either parent. This may be the letter of the law, but many courts still give weight to mothers as somehow having a greater natural ability to provide essential parenting skills. This is where a sharp-eyed, nimble-minded attorney representing the ex-husband (but still father!) is vital. Such presumptions, not grounded in science or law, can and should be challenged.
What Does “Custody” Mean, Exactly?
In Virginia, “custody” may refer to two different concepts. The parent with whom the child lives has “physical custody.” This can be dictated by the court, and can be either the mother, father, or someone else entirely (see below). Which parent makes life decisions for the child is determined through “sole legal custody” or “joint legal custody.” These topics can include:
- Which school to attend
- Which church to attend
- Types of counseling or professional services for the child
- Medical intervention and treatment
This is crucial: the dad with sole physical custody can either have sole or joint legal custody. As the Virginia Bar Association points out, this means the ex-wife and children’s mother may or may not have a say in your children’s education, religious upbringing, therapy or medical treatments.
Paternal Sole Custody
The Code of Virginia, Title 20, Chapter 6.1, Section 20-124.2, part B has the key phrase that unlocks paternal sole custody:
“In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.”
Notice that sneaky-Pete phrasing, “to any other person with a legitimate interest.” This means as a father you may have to defend against not only your ex-wife, but your ex-mother-in-law, your ex-wife’s aunt, and the whole lineage of your ex-wife’s relations in seeking sole custody—physical and legal—of your children.
Virginia is the most populous state without a professional sports team, which means any sports analogy here has to rely on such notable groups as the National Dodgeball League’s Virginia Rampage. As [star?] Virginia Rampage dodgeballer Phil Mineo, #98, might have said, “The best defense is a good offense,” which in this case means having a top-notch lawyer representing your interests as the Dad against all those opponents aiming for your head and hoping to take your kids.
Custody Statistics in Virginia: The Children and the Numbers
Virginia’s divorce records and statistics are spotty, at best, so we again have to extrapolate from the national Census. Nationally, just under half of all custodial parents had legal or informal child support agreements, though custodial mothers were far more likely to have these than custodial fathers (52.3 percent versus 31.4 percent).
In Virginia this means that, in 2013, most of the approximately 2,223 fathers with sole custody (17.5 percent of that year’s 12,705 divorce decrees) struggled to maintain their children’s standard of living without any support from their ex-wives.
Whether from excessive pride, poor legal representation or fabulous wealth, most Virginia fathers with sole custody are paying nearly all costs of raising their children. If you happen to be one of those Virginia fathers with neither excessive pride nor fabulous wealth, you need to protect yourself—and your children’s quality of life—by retaining a good lawyer.
The Firm for Men can provide Virginia men with excellent legal representation based on years of experience serving men only. Our attorneys will keep the best interests of children and fathers in mind, and work hard to protect your rights. Contact the Firm for Men’s Virginia Beach office today to schedule a consultation. We’ve been serving all of Hampton Roads for over a decade!
[1] http://www.vdh.virginia.gov/HealthStats/documents/2010/pdfs/DivCC13.pdf
[2] http://www.census.gov/content/dam/Census/library/publications/2016/demo/P60-255.pdf
