How Is Custody Determined In a Divorce

How Is Custody Determined In a Divorce

Going through a divorce is a stressful time for each parent, as both not only want what’s best for themselves, but also for their children. The custody decision can be the most emotional and hard-fought decision in the divorce process. While a child’s custody can be determined outside of court by the parents reaching an agreement, some parents may opt to go to court and have a judge decide custody if they can’t reach an agreement on their own.

In order to help make this decision process easier, we’ve created this post to list out what is decided in a court custody case and what factors into a judge’s decision when determining which parent has custody.

What Are the Types of Custody?

Before making any decision about your child’s custody, it’s important to understand the two types of custody. There’s legal and physical custody.

Determining Legal Custody for Children

Legal custody is a parent’s ability to make important decisions for a minor child. These include educational matters, medical issues, and the general welfare of the child. The court will decide to grant both parents joint legal custody or one parent sole legal custody.

With sole custody, the determined custodial parent is given those rights and responsibilities to decide for the child, while the other parent has no legal say on those issues.

With joint legal custody, which is often favored by courts, both parents have a say on important decisions for their child. However, if one parent is granted physical custody, a majority of the time that parent will be in a better position to make these decisions.  At Cravens & Noll, we inform our clients that with most educational or medical issues, parents are oftentimes  going to listen to the “experts.”  Experts in custody cases are generally doctors, teachers, therapists, etc.

Determining Physical Custody for Children

There’s also physical custody, which determines where the child primarily lives and how often the parents get to spend time with them. Just as the Judge will consider many factors within §124.3 of the Code of Virginia to determine physical custody (just as they will to determine legal custody).  This code section is called the “best interest of the child statute” which is explained in more detail below.

When physical custody is granted to one parent, the child primarily lives with that parent while the other parent is granted visitation with specific times to see the child.

Shared Custody

In some cases, the court will order both joint legal and joint physical custody.  This is considered shared custody.  It may be a “week on/ week off” schedule in which the child lives with each parent for a full week, and then switches to live with the other parent for a full week.  Sometimes the court will split the weekdays in half and then alternated the weekends.  The reason some courts order this is that in some cases the evidence shows that both parents have been significantly involved with the child, and the best interest of the child is to have both parents remain significantly involved with the child.

How Custody is Decided in Court

If the parents cannot agree on a “parenting plan”  and settle their case out of court, a judge will hear evidence to determine the best interest of the child.

When making a decision about a child’s custody, Virginia courts make their decision based on “the best interest of the child”, which is based on a number of factors.

  • The Child’s Relationship With Each Parent: This is normally based on how often each parent spends time with the child, and can be used to determine who is the primary caretaker.
  • The Parent’s Living Situation: This can range from how well each parent’s house is kept, to the distance each household is from important services like schools and doctors
  • The Child’s Place in Their Current Community: If your child has well-established roots in their current situation, like a large friend group or obligations like a sports team or club, it can be difficult to argue that they’d have an easy time adjusting to a new community.
  • Each Parent’s Physical, Emotional, and Mental Health: This factor can be greatly affected by the reason for the divorce if it’s based on adultery or abuse. It’s also affected by a parent’s history with their general health, be it physical, mental, or emotional.
  • A Parent’s Ability to Cooperate With the Other Parent: If both parents can cooperate in court and reach civil agreements, this can make it easier to reach joint custody decisions, as you show the judge how both parties are willing to separate their differences to do what’s best for their child.
  • The Child’s Own Wishes: This factor is based on the child’s age and if the court believes they are mature enough to speak for themselves.

No Two Cases Are Alike

While we’ve offered some general advice here, it’s important to note that there are no guarantees in a custody case or in a divorce case that involves child custody. Each case is unique, not only in the family’s situation but also in the judge and their own decision. It’s important to keep the child’s best interest in mind during the preceding. It’s also recommended that before discussing any decision with the other party, you should seek legal counsel.

The Cravens and Noll Family Law Practice Group specializes in family law cases and helping parents obtain either settlements or court orders that are best for their child. Contact us today to help with your divorce case.

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Family Law Attorneys

Joe Cravens


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David Edward Noll


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W. Allan Burns Jr.


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