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What is Virginia Physical Custody? (Part A)

The issue of child custody is one of the most pressing issues in any Virginia divorce proceeding. Determining which parent will retain physical custody can be a source of tension in divorce settlements, so it's important for every woman considering a Virginia divorce to thoroughly understand the notion of physical child custody in Virginia.

The Definition of Virginia Physical Custody
Child custody has two forms in Virginia, physical and legal, as prescribed by the Virginia Legislative Code. The basic difference between the two types of child custody is the amount of planning the custodial parent can do on behalf of the child. When a parent has legal child custody, they have the power to make long-term decisions on behalf of the child; where he or she will go to school, if the child will attend church, how the child will be disciplined, etc.

Physical child custody, refers to which parent the child will reside with. Physical custody can be granted to one parent (sole physical custody or primary child custody) or both parents when the child spends equal time living at both parents' residences (joint physical custody).  

For example, if you and your husband share physical custody and the child lives with the father half of the time, the father can make day-to-day decisions about the child, but he can't take the child out of school or move with him to another state unless he also has legal custody of your child. You or your former spouse can be granted sole legal custody and still have the option of having joint physical custody. Likewise, both parents can be granted shared legal custody even if only one parent has physical custody of the child.

Who Decides Physical Custody?

In Virginia, child custody cases are decided by the Juvenile and Domestic Relations District Court. According to Virginia Code Section 20-126(a), your physical child custody case falls under the jurisdiction of this court as long as the child lives or goes to school in Virginia and the parent has some connection to the state by working, living or paying taxes in Virginia.

If the child does not currently live in Virginia, but did live in the state up to 6 months ago and the parent continues to live in Virginia, the issue of physical custody also falls under the jurisdiction of the Virginia court.

The decision regarding physical custody should be discussed and agreed on by both parents, but the court will make the final physical custody decree "in the best interests of the child."

When it comes to matters of child custody in Virginia, it would be in your best interest to consult with an experienced divorce attorney who understands women's issues in Virginia. It is important that the Virginia divorce lawyer you choose has handled cases similar to yours and that they understand physical custody.

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Kristen Hofheimer
A passionate advocate and well known champion for women in divorce and child custody issues.