By: Ameet I. Habib

The most fundamental concepts to understand when faced with a custody issue are the definitions of custody that exist in Virginia. By statute, there are two kinds of custody, both of which are addressed every time custody is at issue in court: legal custody and physical custody.

Legal custody is broadly defined as the responsibility for the care and control of the child and the authority to make decisions concerning the child as found in Virginia Code Section 20-124.1. A court can grant parents joint legal custody or sole legal custody to only one parent. Because children are defined by the law as not having the ability to make legal decisions, any parent with legal custody is able to make medical, legal, academic, financial, and other decisions on that child’s behalf. As a part of this decision-making authority, a parent with legal custody also has the right to access any information regarding his or her child. This means that in cases in which sole legal custody is granted to one parent, the other parent may face obstacles in being able to access such information regarding his or her child and make decisions about that child.

In most cases judges in the Hampton Roads area will grant both parents joint legal custody. Most judges believe that both parents should continue to co-parent their children even after the parents have separated. An example of a case in which a court might grant sole legal custody is when the other parent has abused the child directly, or has demonstrated a severe disregard for the law and the well-being of the child.

The other form of custody is physical custody, defined as who the child lives with. In most cases, I have found that when a parent is seeking ‘full custody’ he or she is referring to physical custody. There are two major forms of physical custody in Virginia: primary physical custody or joint physical custody. Both forms are relatively self-explanatory. Primary physical custody is where the child lives most of the time. Joint physical custody is awarded when the child spends significant time with both parents (but not necessarily equal time).

Any parent facing a possible custody dispute should keep these definitions in mind. Despite any friction, conflict, or disputes between the parents, experts in the fields of child psychology and child development all agree that having both parents in a child’s life is critical to that child’s proper development.

This article is the first in a series of articles intended purely as an introduction to family law. In over 10 years of practice in this area, I have found that the overwhelming time I spend with the majority of my clients is to educate them on some of the basic principles that underlie these emotionally fraught situations. These articles, intended only for matters in the Commonwealth of Virginia, are meant to assist in educating people who may find themselves in these situations.