The differences between legal and physical custody

Discover the many facets of physical and legal custody in Virginia. Find out how it affected by different circumstances.

What happens when a couple goes to court to determine the custody of their child in Virginia depends upon various factors. Each case is different, but there are some rules and guidelines that are followed in every case to ensure custody decisions are made fairly and in the best interests of the child. Here are some common questions and answers regarding custody, specifically legal vs. physical custody and how it is affected by different scenarios.

What is legal custody?

According to Virginia's Judicial System, legal custody awards a parent the right to make decisions regarding the child. The parent with legal custody will also have control over the child's care.

What is physical custody?

Physical custody is who has physical control over the child. This is who the child lives with and usually who the child spends most of his or her time with.

What factors affect custody decisions?

Both parents can share legal and physical custody or one parent may be granted legal and physical custody or a combination could occur where one parent has physical custody but both parents share legal custody. The main rule a court always follows when making custody decisions is to ensure the decisions made are what is best for the child.

In a situation where there is more than one child, the Code of Virginia, suggests that courts will work to try to keep them together. So, the court will usually award physical custody in a way that keeps the children living under the same roof.

An adopted child is always considered a natural child when it comes to custody. If both parents have adopted the child, then the child is treated no different. If only one parent adopted the child, then that parent retains all custody rights to the child in most cases.

The court will look at how old the child is and consider the relationship the child has with each parent when making decisions. The court also considers relationships with extended family and the general needs of the child and how each parent can fulfill those needs.

Does a child have a say in custody?

The court may consider the child's wishes in some cases. It will look to ensure the child has the mental capabilities and the ability to express his or her opinions and feelings on the matter. The Central Virginia Legal Aid Society, Inc. notes, generally speaking, children over 14 are given the most preference when it comes to the court listening to what he or she wants, but children ages seven to 13 are also allowed to express their feelings on the matter and the court will consider them.

What happens with custody of an unborn child?

The Virginia Department of Social Services explains that until a child is born, it is under the complete legal and physical custody of the mother. Upon the birth, this will not change unless the father takes legal steps to secure rights. Paternity must be established before any custody arrangements or decisions are made.

When it comes to custody, there are many factors that can affect the outcome of a case. It is usually best to consider getting guidance from an attorney, such as Boyce, Leahy & Francescon.