Custody in Virginia is divided into two parts, with the first part being referred to as “legal custody” and the second party being referred to as “physical custody.” This article will focus on the first part – legal custody, which is referred to in Virginia as either sole or joint legal custody, while in other States it may be referred to as sole or shared legal custody.

What is sole legal custody?

With sole legal custody, one parent has complete authority to make legal decisions for and about their children, including their education, religious upbringing, and healthcare. This is different from sole physical custody, which refers to where a child will reside and whether one parent will have primary physical custody of the child, while the other parent may have limited (and even supervised) visitation.

Having sole physical custody does not grant you exclusive rights to make decisions for your children; this is only granted with sole legal custody. Sole legal and physical custody can be awarded together, but that is not always the case.

Sole legal custody may encourage a more consistent environment and make it easier for the custodial parent to make and execute care decisions without the permission of the other parent. The amount of communication between parents is limited, so there is often less conflict, especially if the non-custodial parent has no interest in being part of the children’s lives or is not fit to participate in such decisions due to past abuse of a spouse, a child, or has other life issues such as addiction or even incarceration.

However, having sole responsibility for the children can be stressful and burdensome. Making every decision might be overwhelming and strain the relationship with an older child if they disagree with those decisions. It also means the custodial parent can’t rely on the non-custodial parent for help with difficult choices.

Advantages of sole custody

• Consistency. Having one parent make all important decisions can provide a sense of consistency for a child. Often, parents in complex relationships that require sharing custody disagree with one another. If one parent makes all of the decisions, the child will always know which parent to defer to and may lack respect for the other parent.
• Safety. When someone seeks sole custody, it may be because the other parent is incapable of taking care of a child, potentially because of abuse or substance use. If one parent is not in the right space to care for a child, sole custody agreements create a safer environment for the child.
• Conflict reduction. Sole custody means that only one parent is involved in the decision-making. This significantly reduces the number of disagreements, because the parent with custody does not have to consult with anyone else. Fewer conversations and interactions between the two parents means that the child will hear less arguing and perceive the relationship as more stable.

Disadvantages of sole custody

• Resentment between parents. The parent who is not granted sole custody may feel resentment toward the parent who is, or toward the situation as a whole. Conversely, the parent who does win sole custody may feel resentment toward the other partner that this situation had to happen in the first place. It can create a strained relationship between parents.
• Strained parent-child relationships. The parent who does not receive sole custody may feel discouraged about their relationship with the child, and the child may also feel like they’re not able to build a relationship with their non-custodial parent. They may also feel disconnected from the family as a whole.
• Impact on the child(ren). Children need stability and care, and the instability of a custody disagreement and the division of care between two parents may leave the child feeling stressed and anxious. Children often model the behavior of their parents, and the strain felt between the two parents over a custody disagreement may carry over to the child.

What is joint (shared) legal custody?

Having joint or shared legal custody means both parents have legal authority when the child is in their care to make decisions for their children. In addition, it means that both parents must actively communicate and share information with each other about the decisions being made and include the other parent in any non-routine medical care matters as well as all matters surrounding their education, religious upbringing, and even placing them in counseling. This is commonly referred to as “co-parenting.”

Many couples with an amicable separation and divorce view joint legal custody as being consistent with how they have parented during their marriage and as serving their children’s best interests. Though the marriage has ended, it can be critical to their stability and mental well-being to still see their parents interact and work together as co-parents in making important legal decisions for them. This also prevents the child from feeling isolated or disconnected from one parent.

Parents with joint legal custody don’t have the burden of being the sole person responsible for making important decisions for their child. They have a collaborator with whom they can talk through issues, and they’ll know that someone else is accountable for these choices.

The downside is, it’s unlikely that you and your ex-spouse will agree on every single choice about your children, which may delay important decisions. Sometimes, disagreements can escalate into fights and decisions that ultimately have a negative impact on the children’s well-being. When an impasse occurs, the only solution may be to seek court intervention in order to obtain a ruling that will supplant both parents from being the final decision-maker. This is most commonly seen in disputes over placing a child in therapy or where to register them for school if a child was not school-age when the parents divorced and the parents live in different school districts, each believing theirs to be the best for the child.

Advantages of joint custody

• Both parents stay present. Joint custody ensures that both parents are able to make important decisions and that each spends roughly the same amount of time with the child. In this type of agreement, parents are both actively a part of the child’s life.
• Responsibility is shared. Parenting can be challenging, especially with younger children. It often means long nights and requires a lot of energy. In joint custody agreements, parents can share that responsibility and come together to make consistent decisions rather than putting the work and stress on one parent.
• Children’s best interests are at the center. Co-parenting allows a child to have equal access to both parents and maintain strong, positive relationships with both of them. The child can decide which parent to talk to about a specific issue and can engage with the lives, hobbies, and interests of both parents.

Disadvantages of joint custody

• Planning. Divorced parents each have their own lives on top of attending to their child’s obligations and commitments. Arranging pick-ups and drop-offs from school, activities, and sports may be difficult and lead to disagreements between parents.
• Arguing. As both parents will share decision-making responsibilities in joint custody agreements, it’s likely that arguments will happen, especially if the parents aren’t on good terms. Scheduling visits, deciding who gets to spend time with the child on holidays, and larger decisions, such as religious upbringing, may lead to fighting.
• Moving. When both parents don’t live together, a child may have to move back and forth constantly between both houses. This kind of inconsistency can make a child feel ungrounded, resentful, or stressed.

Sole vs. joint legal custody: Which is right for my family?

Every family dynamic is different, so there’s no single “right” answer when it comes to legal custody. The biggest determining factors for your family should be each parent’s ability to act in their children’s best interest and how well you can work together at co-parenting.

For instance, if your spouse has exhibited neglectful, abusive, or manipulative behavior toward you or your children, you will likely want to seek sole legal custody so you can protect your children from such behavior. However, if both parents are responsible, loving, and willing to work together, shared legal custody is often most beneficial to the children so they can continue to have a relationship with each of you.

Some couples require the Court to make this decision for them because their relationship is too damaged or toxic for them to come to a mutual agreement. This can be especially true where there is a history of domestic violence, child abuse, or addiction that may be the cause for separation and divorce.

If you are, however, trying to reach an agreement and draft your own legal custody provisions into a marital settlement agreement, separate custody agreement, or even a consent order, there are many factors to consider, including whether you believe strongly that you should retain sole legal decision-making authority for your children rather than having to involve the other parent in making such decisions.

Alternatives Approaches to Custody (Split Custody)

If sole or joint custody doesn’t seem right for your family, split custody is another option to consider, though this is generally only done in rare circumstances. In split custody cases, multiple children are split between parents, so that one parent gets sole or primary physical custody over one child, and the other parent has sole custody of another child. This type of custody is uncommon because if both parents are fit to take care of the children, a court would be more likely to award joint custody.

Joint custody creates a more equal parenting situation and allows the child to have a more stable relationship with both parents. In split custody agreements, children may feel as though they were separated, or they may be resentful that they’re living with the parent they wouldn’t have chosen.

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