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Law Issues
Joint Custody
by Beth M. Coyne, Esq.
bcoyne@winchesterlaw.com
In the world of family law, one hears the term "joint custody" often, but it is frequently a source of confusion. What does "joint custody" really mean?
STATUTORY DEFINITION. Joint custody is defined in Section 20-124.1 of the Virginia Code as meaning 1) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to made decisions concerning the child even though the child's primary residence may be with only one parent; 2) joint physical custody where both parents share physical and custodial care of the child; or 3) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
PRACTICALLY SPEAKING. Despite this definition, most people envision a joint physical custody arrangement when they hear the term joint custody being used. They usually think that joint custody of little Opie means that each week Opie spends 3 ½ days with mother and 3 ½ days with father. Such a scheme is not often the reality, at least in the Winchester-Frederick County area. More commonly, joint custody of Opie means joint legal custody, where both parents have joint authority to make decisions affecting the child, but where Opie actually lives primarily with one parent and has visitation with the other.
OPEN FOR DEBATE. The types of decisions over which both parents have authority is not specified in the statutory definition of joint legal custody. The law as written is open-ended, and it could be interpreted to mean that both parents must jointly make all decisions affecting the child: Should Opie have braces? Should Opie join the soccer team? Should Opie buy the corn dog or the fruit cup for his school lunch? That is why many judges have taken to defining joint legal custody themselves within their court orders. One judge's standard order defines joint legal custody as follows:
The mother and father shall share in making decisions relating to the children's health, education. and welfare. Decisions about the following matters must be made jointly by the parents:
1. Health and medical treatment involving psychiatric counseling and therapy, elective surgery or physical therapy, non-emergency treatment for serious disease or injury, and orthodontia or elective dental surgery.
2. Whether the child will attend a private or public school; any change in school not occasioned by a change of residence; and all decisions regarding special education.
3. The mother and father shall consult to formulate guidelines for the discipline of the children to provide consistency between the two households.
Occasionally, how a decision will be made when a conflict arises over a joint decision is also an issue. For example, how will a dispute be resolved when father wants to send Opie to his alma mater of Eversnob Academy, while mother desires that Opie attend PS 101? That is when the following provision, specified in many court orders, is useful and important:
In the event of a dispute, the parent with whom the children are then residing shall have the final say.
HALF & HALF. Sometimes parents actually divide the time that Opie spends with each of them. This joint physical custody situation may result in Opie spending ½ of the week with mother and ½ of the week with father, but it doesn't necessary have to. It can also mean Opie alternating weeks with each parent, or living with mother during the school year and with father during the summer and during school vacations, or staying with mother during the day while father works and staying with father overnight while mother works; in sum, it can mean virtually any kind of arrangement divided between the parents which results in each parent having physical custody of Opie.
Whatever you may have heard about "joint custody," it is in your best interest to consult an attorney to determine just what it means for you and your specific situation.
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prepared by the Virginia State Bar. The preceding article is general
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