What You Need to Know About Legal and Physical Custody in Virginia

Understanding the correct usage of a legal term is important, especially when these terms are applied to the custody outcome for your child or children. Physical, legal and joint custody all refer to different arrangements after a divorce and it’s important to understand these terms before any decisions are made.

What Is Legal Custody?

Legal custody refers to the guardian’s responsibility for and control over decisions made regarding a child. The individual or individuals with legal custody will make decisions about a child’s education and day care arrangements, among other things. If both parents have joint legal custody after a divorce, they share the right to make decisions concerning the child’s life much as they did before divorce. As far as legal matters with the child are concerned, both parents act as if they are still part of the same family and both have legal responsibility for and control of the child. Typically, legal custody exists outside of and regardless of the physical custody arrangement.

What Is Physical Custody?

Physical custody refers to the physical location and home of a child. After the parents separate, the parent that the child lives with has physical custody. If a court determines that parents will have joint physical custody, a child will move between the parents’ physical locations after their separation. If a parent has primary physical custody, this means that the child lives with one parent while the other parent has visitation rights. Visitation rights refer to a parent’s court ordered right to spend time with their child.

What is Joint Custody?

Joint custody can refer to physical or legal custody parents’ have of their child. If it is in the best interest of a child, a court may award joint physical custody and joint legal custody to both parents, or decree some combination of joint physical and joint legal custody.

For example, two parents have joint legal and physical custody and their child splits his time equally between each parents’ home and both parents share the legal authority to made decisions for the child. The parents have a vehement disagreement over where the child should attend daycare and take the issue to court. A judge decides to give one parent the right to make decisions about how a child will be educated, essentially granting legal custody to one parent. The child will still split time between both parent’s homes under the joint physical custody decree, but one parent would no longer have the authority to make educational or legal decisions for the child.

How Does a Court Determine Custody and Visitation?

When parents contest custody or visitation, a court will rule based on what it thinks are the best interests of the child. To make this determination, a court considers a number of factors including:

  • the qualifications and fitness of the parents
  • their adaptability to the task of caring for the child
  • the ability to control and direct the child
  • the age, sex, and health of the child
  • the child’s well being
  • the environment and circumstances of the proposed home and the influences likely to be exerted upon the child
  • the effect of one or both parents’ extramarital relationships on a child

Many of these factors, such as the ability of a parent to control and direct a child, appear to have common sense interpretations. Some factors that the court must consider, like the significance of adultery, are best explained by an attorney experienced in family law.

If you have additional questions regarding custody issues or if you are about to undertake a divorce proceeding and need legal representation, please contact us so we can help you ensure the best situation for your child and his or her custody agreement.

This blog was written by Josiah Lindstrom, Law Clerk