Yes, getting sole custody of your children in Virginia is possible, but gaining full custody is not very common. Child custody is a significant facet of many divorces, and it can be very contentious. However, with the skilled help of Virginia family law attorney James Short, you may be able to seek sole custody of your kids.
Joint Custody Versus Sole Custody
When a couple separates or divorces, the courts can decide who gets custody of the children. As standard practice, Virginia courts tend to prefer joint custody arrangements. The idea is that they are trying to minimize disruption for children as much as possible. The courts value having both parents involved in a child’s life.
Defined in Virginia Code Section 20-124.1, joint custody refers to when both parents retain joint responsibility for the care and control of the child. They jointly make decisions about the child’s schooling, health care, or religious upbringing, for instance. Some joint custody arrangements may have the child living with one parent more often than the other. This can still be joint custody, even if the child resides with one parent. The court can set out visitation rights for the other parent.
Sole custody is also defined in Virginia Code Section 20-124.1. In this arrangement, only one parent is named the “custodial parent.” They are fully responsible for the care and control of the child. Sole custody means one parent is the “primary authority” for the child’s upbringing and well-being.
Valid Reasons to Get Full Custody of Your Children
The courts refer to the factors listed in Virginia Code Section 20-124.3 when deciding on child custody and visitation rights.
While the courts tend to default to joint custody, there are compelling reasons why they may award sole custody. Mainly, they consider if the other parent cannot make sound decisions or is otherwise unfit to raise the child for one or more of the reasons described below.
A Parent Is Incapacitated
From a legal standpoint, an adult is incapacitated if they are unable to care for themselves. They may have a physical or mental condition that limits this ability. This person may be unable to provide food or shelter, manage finances, or care for their health. Thus, the courts may rule that this parent cannot raise a child.
History of Neglect or Abuse
Cases involving domestic assault may justify sole custody of the children. There may have been a history of abuse, either emotional or physical. The family may have experienced a history of neglect from one parent, too. Where there is an ongoing and imminent threat of abuse, the courts may rule it is in the child’s best interest not to have the abusive parent in their lives.
Unfit to Raise a Child
A parent doesn’t have to be incapacitated to be considered unfit to raise a child. Virginia family court may look at other factors. For example, if one parent struggles with severe addiction, they may be deemed unfit to raise a child. If they have specific mental health issues, joint custody may not be in the child’s best interest. In making this decision, the courts will consider a parent’s ability, willingness, and preparedness to raise a child.
For joint custody to work, both parents must have reasonable access to the children. Virginia courts generally do not restrict access to children unless there is a significant reason to do so. One of these is if a parent is a potential flight risk. If there is a real possibility that the parent may leave with the children, the courts will take this into consideration.
If one parent has a criminal record, the courts may award sole custody to the other parent. They often handle this on a case-by-case basis. A minor drug possession charge may not be enough to affect custody, but a more serious felony charge might be a reason to grant sole custody. A criminal record or a history of incarceration will work against a parent’s claim to child custody.
Understanding What Sole Custody Means
Virginia’s laws on child custody break down into two main categories: legal custody and physical custody. In either case, calculating child support will still be an essential factor.
Legal custody describes the right to make decisions concerning the child’s upbringing. This can impact matters of morals and faith, as well as education, health care, and so on. Even when sole legal custody is awarded, the other parent retains a fundamental constitutional right to influence child-rearing decisions. The exception would be if there is a compelling reason that protects the child’s health or welfare.
Physical custody describes where the child lives and spends most of their time. The courts tend to prefer whoever was the “primary caregiver” before separation. They aim to maintain stability in the child’s life. Visitation rights are a subset of physical custody determinations. One parent may have close to full physical custody but still share joint legal custody of a child.
Creating a Compelling Case for Full Custody
Child custody is complex. There is no “one size fits all solution.” The courts will make these decisions on a case-by-case basis. Especially in a contested divorce, hiring a family law attorney who can aid in your claim is crucial. James E. Short has years of experience helping parents seeking custody of their children.
While some form of joint custody is far more common in Virginia, it is possible to get sole custody of your kids in some cases. Gaining full custody isn’t easy. The process takes time. A passionate and compassionate divorce attorney can formulate a compelling case and protect your family.