What kinds of custody are available in Virginia?

What kinds of custody are available in Virginia?

Custody is divided into two types: legal custody and physical custody. Legal custody means the right to participate in major decisions affecting the child like educational, medical, and religious. Physical custody is the right to the child itself or what most people think of when they think of custody.

Primary physical custody is also called primary residence and primary care and is usually the parent the child resides mostly with. Virginia prefers that parents share joint legal custody with primary physical custody being in one parent or the other. However, if there are problems of abuse, drugs, or alcohol, joint legal custody will probably not work. Even if parents share joint legal and physical custody, it doesn’t mean they have equal 50-50 time with the child. Parents can share custody and design a schedule that works best for the child with or without it being 50-50.

A typical schedule provides time with the non-custodial parent every other weekend, usually Friday through Sunday, one night or evening during the week, shared or alternating holidays and the child’s birthday, and one or two weeks during the summer.

Shared custody can be week on, week off, alternating weekends with each parent having two days during the week, or 3 days on 4 days off then switch.

Child support is often paid even when there is 50-50 time with the child depending on the parents’ relative gross incomes. Gross income includes all income from every source for determination of child support.

If you can’t afford health insurance for your child, you should investigate Virginia’s FAMIS program. You can find information about FAMIS at:

http://www.famis.org/

Child support calculations are by the Virginia Guidelines. You can calculate your own using information found at:

http://www.dss.virginia.gov/family/dcse_calc.cgi

Who gets to live in the marital home during the separation?

There is not a black and white answer to this question. It depends on a lot of factors. If there are minor children, usually the court will allow the parent with primary custody to live in the house with the children during the separation.

In the past, the party living in the house with the children, usually the mother, asked the court to have the other party, usually the father, pay the mortgage during the separation. The payment of the mortgage was in addition to child support and spousal support. Some courts would order the mortgage paid by the husband, especially if the mother had no job. Others would divide the mortgage in two or deduct the rental value of the house from the amount of the mortgage, charge the person living in the house with the rental value, and divide the remaining amount either equally or in proportion to the parties’ income.

These days, an order for payment of the mortgage often depends on whether or not there is any equity in the house. Most divorcing couples don’t have any equity in the house so the court is not charged with preserving the asset during the separation period so it can be divided later. Often the court won’t even divide the deficiency or upside part of the house in the divorce as that can possibly prevent one of the parties from discharging the debt in bankruptcy later.

If there are no children, it is more difficult to decide who lives in the house. The court will not kick out a spouse if you are still together unless there has been domestic violence in which case the one attacked can get a protective order forcing the other spouse to leave. Short of violence, each spouse has the right to live in the house and the court won’t make either one of them go unless there are fault grounds causing the divorce like adultery in which case the court will often order the cheating spouse to leave (but not always, especially if there are children involved). Who gets the house during the separation depends on your particular situation.