The types of custody

By Theseus Schulze

January 28, 2024

Broadly speaking, there are two types of custody, “physical” and “legal.” Each of these terms can be further divided (once again broadly speaking) to “sole” and “joint” and other variations in between

Legal Custody

Legal custody refers to who can make important decisions about the child. Such as education (where the child would go to school), religion (what religious practices should the child partake in), and medical procedures (what medical procedures can the child undergo).

Joint Legal Custody

The vast majority of the time the court’s in Virginia will order the parents to have joint legal custody and an equal say in the child’s life. In practice this means both parents have to agree in the affirmative for an action to take place. So if one parent wants the child to go to a specific school, and the other parent says no, generally the child cannot go without both parents being in agreement. 

Sole Legal Custody

This is exceedingly rare and generally only awarded if some of the following facts are in play. 

  • The parties can’t agree on anything
  • The lack of agreement is hurting the child
  • One parent has completely abdicated themselves from responsibility in the child’s life (deferring to the other parent)

Tie-Breaking Legal Custody

While not as rare as sole legal custody this is also pretty rare. Generally what this means is when the parents can’t agree, and after each person being given their chance to give their input, one parent gets the final say. Often in practice this ends up being effectively sole legal custody but word of caution, if the tie-breaking authority is abused a court may modify it back to joint legal custody.

Physical Custody

Physical custody is which parent’s house will the child be spending his or her time at. Sometimes this is called “parenting time” rather than custody. Physical custody can be divided in a near endless amount of ways. While in theory the courts should give each parent approximately equal parenting time with the child that’s generally impractical based on the parent’s addresses.

Joint physical custody

When equal parenting time is possible the courts will generally order a “week-on/week-off” schedule with pick ups and drop offs occuring during the weekend. Sometimes the courts will do a “2-2-3” schedule where one parent always has Mondays and Tuesdays, the other always has Wednesdays and Thursdays, with Friday, Saturday, Sunday rotating. 

Primary physical custody

However,  when “equal parenting time” is not possible the court will often assign one parent as the “primary custodial” parent, with the other having visitation time. Visitation time is generally set up as every other weekend and a dinner once a week on a consistent day. The courts will also, if needed, determine a holiday schedule, spring break, summer break etc. The court’s may also award one parent with primary physical custody when the one is far less capable of caring for the minor child.

Sole physical custody

This is when one party has zero rights to see his or her child. This never happens except in cases where the parties agree and even then it might not be awarded. The court never goes this far. Even in cases where one parent is horrible, more often than not the court would award that parent supervised visitation for a few hours once or twice a month. The policy in Virginia is to build families together not actively push them apart.