Colonial Williamsburg is a Virginia treasure. It portrays life in colonial America just before America’s revolution against England. A visitor can sit as a juror in the courthouse, stand in the House of Burgesses, or amble through the Governor’s Palace. Fortunately for everyone today, visitors to Colonial Williamsburg are not burdened by the laws of 1770 America. Our laws, including child custody laws, have evolved.
The Tender Years
Once upon a time in America and England, (before 1763) fathers had exclusive custody of children. As explained in the California Law Review, parental rights were property rights; legitimate children were the property of the father. Fathers had no claims to illegitimate children.
England’s Parliament in 1839 passed the Custody of Infants Act, giving mothers legal rights to their own children aged seven and under. The Act gave preference to mothers over fathers, on the presumption that children of such “tender years” needed maternal nurturing.
In 1873, Parliament upped the ante, raising the age of presumed maternal custody to 16. Like England, like America: our legal system adopted this tender years doctrine as the default for child custody from roughly the same era until the 1960s and 1970s.
Best Interests of the Child
As society evolved and recognized the equal parenting abilities and roles of both fathers and mothers, most states, including Virginia, changed their laws to recognize paternal custody. Rather than swing the pendulum sharply from defaulting to the mother to now defaulting to the father, the courts landed on the neutral and vague “best interests of the child” doctrine.
The reasoning for this doctrine is plain: children are largely defenseless and vulnerable, so the state serves in loco parentis even when the parents are around. Whatever is best for the child’s physical, spiritual, educational, mental and emotional wellbeing, that is what the court will do.
If Mom is a drug addict and Dad is an accountant, Dad is better suited to care for the kids. If Dad travels with the circus and Mom works at the local library, maybe Mom is better suited to be the kids’ custodian.
Judge’s Choice
In Virginia, the “best interests of the child” standard is still in force, giving judges wide latitude in deciding the fate of Virginia’s children in divorce cases.
Anyone (including grandparents and extended family) wishing to make the legal argument to win child custody has to win over the judge. Stable home life, steady income, clean legal record; all that plays into the decision. Ultimately, though, the judge has the final say.
Judges wishing to do no harm to child or parents often seek compromise. One definition of a compromise is that neither side is happy.
Joint and Shared Custody
This general unhappiness with custody battles has led to the rise of joint and shared custody. Under Code of Virginia § 20-124.1, joint custody is defined as,
(i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
Shared custody is nearly the same as joint custody, but the split of parenting time does not have to be nearly identical; one parent could have the child for more time than the other. Regular, continuing contact with both parents is the defining feature of both joint and shared custody.
Subtle Changes
Some of Virginia’s subtle changes to evolving thinking is found in legal wording. Where once the Code of Virginia spoke of “visitation” for the non-custodial parent, the wording is now “parenting time,” upholding the notion that both parents are equally capable of quality time with their own kids.
For example, Code of Virginia § 16.1-278.15 and § 20-124.2 have both been amended with this wording:
In any case or proceeding involving the custody or visitation of a child, as to a parent, the court may, in its discretion, use the phrase “parenting time” to be synonymous with the term “visitation.”
This may seem to be splitting hairs, but to the non-custodial parent spending time with his own kids, “visitation” was a harsh reminder that the time was fleeting, temporary, and less meaningful than time the child spent with the custodial parent.
Modern Law, Modern Lawyers
When selecting a Virginia law firm to handle your family law case, you need to find a firm rooted in, and respecting, the fine legal traditions dating back to English law. Yet that same firm has to be firmly facing forward, to recognize the rights of all parties in these disputes.
The rights of Virginia fathers continue to be shaped by public opinion and legal changes. Work with a firm that is aware of ever-changing legal precedents. Work with a firm that is knowledgeable of the many changes to Virginia’s laws enacted each July.
Call The Only Family Law Firm in Virginia Representing Men Exclusively
You are not being selfish to want fair treatment from Virginia’s legal system. Yes, you want what is best for your child, but not at the cost of your financial security. You want what is right and just for your children, their mother, and you.
The Firm For Men keeps up with the changing legal landscape. We can handle your Virginia family law matter. We work exclusively with Virginia’s men, helping to preserve your financial security and personal freedoms. We can help with your child custody, child support, and spousal support case. Contact us today, or call our offices at 757-383-9184.
