When parents stop living together, the way they share the job of parenting has to adjust to the fact there are now two homes. Ideally, the parents talk about it and come up with a plan that works best for the children. But some parents are unable to agree and a judge has to decide for them. In Virginia, lawyers and judges call this issue “custody and visitation.”
If the parents are not married, they can file petitions in the Juvenile Court asking for a court order that spells out when each parent will have the children in their care. Juvenile Court judges are very used to deciding cases where the parents don’t have lawyers and many times the judge bases his or her decision just on the testimony given by the two parents.
If the parties are married, the child custody question is more likely to be decided in the Circuit Court as part of the divorce. It is much harder for the parents to deal with the Circuit Court’s procedures without lawyers.
Regardless of which court decides the case, the question of child custody and visitation is a factor-based, discretionary decision. That means the legislature has told the judges to think about 10 factors and make the decision based on them. The factors are listed in Virginia Code Section 20-124.3. So long as the judge says they have thought about the factors their decision will probably be upheld on appeal.
Traditionally, custody was awarded to the mother and she had the children most of the time. This is called “primary physical custody.” The father got “visitation.” In many families, this meant Mom became the boss and dad was just someone who was allowed to “visit” with the children.
The default plan was alternate weekends, dinner on Wednesday nights, a fair sharing of the holidays and a block of time in the summer. In Virginia, the courts followed something called the “tender years presumption.” In the case of children under 5, the law automatically gave primary physical custody to the mother unless there was some strong reason that she should not have them.
Today, the law today is gender neutral on paper. The Virginia Supreme Court has abolished the “tender years presumption.” But mothers are still given custody much more often than fathers.
The 20-124.3 factor that seems to carry the most weight is number 5: “The role that each parent has played and will play in the future, in the upbringing and care of the child.“ Mothers and their lawyers argue that she “has always been the primary care-giver” and therefore should have primary physical custody. Very often this argument wins out and dad is still just a visitor.
There is, however, a slow drift in the direction of less lopsided schedules. Many parents now agree to equally shared physical custody. Sometimes they will agree to a “four/three” which has the children with the mother for four days and the father for three.
Still, it remains hard to get judges to order equal sharing if the parents have not agreed to it. Also, many fathers see a custody fight as an expensive gamble with only low odds of winning and choose not to fight for equal time.
Right now in Virginia many judges are retiring and a new generation of Juvenile and Circuit Court judges are taking their places. In my opinion, now is a good time to try to move things in the direction of more equality. I think that if more fathers push for equal treatment, the bias against them will slowly diminish and we will eventually reach a point where equal time becomes the default parenting plan.