The Stanley Cup is huge and heavy. Not your typical trophy, this hockey honor1 stands 35.25 inches tall and weighs 34.5 pounds (roughly the size and weight of a four-year-old child). It is also never in the custody of each member of the winning team for more than one day; after its annual tour, it and its Keeper return to the Hockey Hall of Fame in Toronto. This, in a nutshell (or hockey puck, as it were), summarizes the difference between legal and physical custody: the Stanley Cup legally belongs to trustees2 (not the NHL), but it physically lives in Toronto, or tours the country. Custody of Virginia children can be just as complicated.
Physical vs. Legal Custody … Simple as Pie
Squabbling over who the better goalie was is every hockey fan’s right, but no divorcing parents should squabble over their children. Working out physical and legal custody of your children is not only a duty, it is a privilege. The difference is simple:
- Physical custody defines where the child will live
- Legal custody defines who has the right to make important decisions for the child
During a divorce, emotions run high. You and your ex-wife may say and do things that are motivated by dark instincts, but for the sake of your children, you need to think only of them when determining the two custodies.
What is Physical Custody?
This is the thorn in every divorce involving children. With whom shall the children live? Both your ex-wife (the kids’ mother, after all) and you (you are their Dad!) have reason to jealously protect your relationship.
What is fair to the children? This should be the driving question, and you have to compare everything to reach a decision, usually laid out (harsh as it sounds) in a property settlement agreement:
- School districts
- Home sizes
- Yard spaces
- Children’s friends
- Parent work schedules
- Day care hours
- Accessibility between custodial home and extracurricular activities
Your attorney will view much of this analytically, relieving you of the burden of trying to think straight when all you want is to have your kids with you. In truth, a good lawyer may point out that you are ill-equipped to take physical custody of your children, and your ex-wife may be a better choice.
This is not as gloomy as it sounds. You and your attorney can craft a strong visitation schedule and build that into the agreement. You can provide financial support for your children, to ensure they continue to enjoy everything they are accustomed to, and you can see them throughout the year.
What is Legal Custody?
You cannot physically split a child; this is why most custody battles are over physical custody. You can, however, split legal custody of your Virginia children. Decisions affecting them can be made together, even if you and she are no longer together. The topics generally covered under legal custody are:
- Medical care — Should she get braces at 12 or wait until 14? Does he need physical therapy for the horseback riding injury? Should we get that looked at? Medical decisions that are not emergencies can be arrived at jointly
- Religion — You can choose to believe or not believe, to practice a religion or forego it; you can make the same decisions for your child, and agree on the faith, practices and observances of your choice
- Education — Every decision, from the right preschool to the best district to options like charter schools, homeschooling, cyber school, and magnet schools, can be made together; as your child gets older, the three of you will need to make choices
A court will often award physical custody of children to one parent, but compel both to take legal custody. This means custodial care is primarily up to one parent (often the mother but not always); your visitations must extend the same level of custodial care. The legal decisions fall to both of you, and the courts frown upon shirking your duties as the children’s legal custodians. You have to communicate with each other.
What is Joint Custody?
In Virginia, joint custody can refer to either joint physical custody, joint legal custody, or both. The Code of Virginia lays out the various options under § 20-124.1. Joint physical custody is a parent sharing plan that works really well for many divorcing parents, especially with younger children. Various arrangements are effective:
- The children live with each parent in alternating weeks
- The children live with one parent for the school year, but spend all summer with the other
- The children live with each parent in alternating months
Courts will not agree to joint physical custody that uproots children across county lines or state borders, for example. The goal, always, is to protect the interests of the children.
Watch the Red Line
Hockey’s red line divides the rink into two equal parts. Do not get caught offsides by trying to reach for more than you can effectively handle. Virginia law requires that a judge consider:
- Each parent’s qualifications and fitness to parent
- Dad’s and Mom’s ability to control, influence and direct each child
- Each child’s age, sex and health
- Each parent’s proposed physical environment — If you live in a two-room apartment and she has your three-story family home on 10 acres, consider which place is better for your kids
A big qualifier in all this is the reason for the divorce. If you divorce your wife on fault grounds, such as her extramarital affair, you and your attorney can show the court she may not be a fit mother, and you may more easily get physical custody.
At The Firm for Men, we may not know much about hockey — Virginia has no NHL team — but we know a lot about custody. Let us help you with your custody issues—we’re the only child custody lawyers in Virginia who represent men exclusively! Telephone us at 757-383-9184.