Defining Sole Legal Custody
Sole legal custody means that one parent has the exclusive right to make all decisions for the child, and that requirement exists between the parents regardless of any provisions for the contacting of the other parent. A parent who has sole legal custody possesses full authority over the health, education, visitation, extracurricular activities, religious teaching, and the general upbringing of the child. The parent who has been awarded sole legal custody has no obligation to consult with the other parent prior to making a decision. Sole custody refers only to the issue of legal custody, which is that quality of being a parent who has the exclusive right to make all decisions for the child. This is distinct from the concepts of physical custody and joint legal custody. Physical custody means that the child resides with that parent. Joint legal custody means that the right to make decisions for the child is shared with the other parent. These are different issues, and a determination that one or the other parent has sole legal custody does not necessarily mean that that parent also has sole physical custody. A parent can have sole legal custody of a child without also having sole physical custody. Virginia Code Title 20 , § 20-107.2(B) uses the terms sole legal custody and sole physical custody in a legal context. That statute provides a non-exhaustive list of factors that the court must consider that relate to custody of a minor child. Only some of those factors are relevant to legal custody. According to the Court of Appeals of Virginia, the right to "make the decisions" for the child can be anything from the mundane details of everyday life to significant decisions concerning issues such as education and religious upbringing. For instance, in Williams v. Williams, the appellate court held that a provision that one parent would "make decisions concerning the child’s education" meant that parent had the exclusive right to make decisions regarding the details of school choice such as where the child would go to school. The court is required to make custody decisions according to the best interest of the child, based on all of the statutory factors. These factors include the factor about "the tendency of each parent to support the child’s contact and relationship with the other parent," which conflicts with a sole legal custody award by denying the other parent the right to be involved in the child’s educational decisions, at least under the facts of Williams. As shown in that case, if the court awards sole legal custody to one parent, it may be expected to impose appropriate restrictions on physical custody and visitation with the other parent, to insure that the goal of furthering the child’s interests is accomplished.
Process for Sole Custody of a Child
As in all custody matters, the legal process for a parent seeking sole legal custody is initiated by filing a Petition for Custody. The petition must be served on the other parent in accordance with Virginia’s Rules of Court. Generally, a trial will take place where both parties may present evidence. A trial judge, or in some instances, a juvenile court judge, will then make certain factual determinations, such as how well can each parent communicate with one another about the child’s needs, such as medical matters, educational matters, scheduling and child care.
The burden rests on the party seeking sole custody to show that it is in the best interests of the child to grant his or her parent such authority. In Fairfax County, for example, their local court rule (Fairfax County Local Rule 8:16) requires the court to order that parents participate in court-approved mediation to resolve their custody issues before the trial. This is consistent with that fact that Virginia utilizes the best interests of the child standard to determine custody. Virginia Code Section 20-124.3 lists the following factors for courts to consider when making decisions: age, physical and mental health of the child, temperament, needs and circumstances of the child, relationship of the child and each parent, each parent’s role in nurturing the child, role of family members in the child’s life, geographic proximity of the parents, willingness and ability of the parents to maintain a close relationship, willingness and ability of parents to cooperate, reasonable priority to the past, present and specific, foreseeable future needs of the child, each parent’s ability to individually or cooperatively function as a parent to the child, or whether the parents can mutually resolve disputes regarding the child’s well being, such and any other factors the court deems necessary or proper to the determination.
Factors Underlying Sole Custody Decisions
At the heart of determining whether sole legal custody is appropriate is what’s better for the children – the Court’s findings should be based on the best interest of the children.
The criteria for awarding sole legal custody includes the following:
- (1) Willingness of parents to cooperate or not for the best interest of the child.
- (2) Willingness of parents to maintain a close and continuing relationship with the child.
- (3) Willingness and ability of parent to maintain the child’s relationship with the other parent.
- (4) Preference of child, if the child is of sufficient age and capacity to form a reasonable preference.
- (5) History of use or nonuse of physical punishment, neglect, abuse, or sexual abuse.
- (6) Reasonable and credible convictions of either parent for criminal offenses involving moral turpitude.
- (7) Conviction of a felony if a child is at significant risk of harm.
- (8) Reasonable likelihood that parent may abuse or neglect the child. This factor incorporates consideration of the effects of substance addiction (alcohol or drugs), domestic violence, negative psycho-emotional functioning (mental health issues), and physical neglect.
- (9) Actions or inactions of a parent which indicate that parent may be unjustifiably or excessively inhibiting a child’s contact with the other parent.
The standard involves analyzing each of the findings in the context of the situation. In small, more temporary or infrequent problems, the child’s interests may favor liberal contact with both parents. However, when a finding involves a threat of harm in the future, the court may be more likely to impose sole custody.
Advantages and Disadvantages of Sole Legal Custody
For a parent, sole legal custody means having the authority to make critical decisions about the child’s upbringing without the involvement of the other parent. Parents granted sole legal custody have the power to make final choices about a broad array of issues, including healthcare, religious education, extracurriculars, and military service. Parents in this situation need not reach a consensus with the other parent before making decisions.
Within Virginia, sole legal custody is traditionally not favored by law courts, and thus is the exception rather than the rule. This custody arrangement is often granted when the court believes the children would be best served by placing them solely under the purview of one parent. Usually, sole legal custody is awarded in cases of abuse, neglect, or incapacity.
Upon receipt of sole legal custody, the custodial parent also receives physical custody of the children, even though this is not a statutory requirement. While courts can award sole legal custody without conferring physical custody, they rarely do so. Courts usually prefer that the children live with the parent who has the legal say over their lives.
Pros for a Parent – Since courts favor sole legal custody in "all religion examines it," the judge may be inclined to overlook negative factors such as domestic violence and substance abuse if the evidence indicates doing so is in the children’s best interest. Additionally, courts tend to show leniency toward a custodial parent when the abusive or addicted non-custodial parent has limited or supervised visitation rights.
If the custodial parent has just suffered domestic violence or substance abuse, she may feel empowered by knowing that she has the sole authority to make critical choices about her children’s upbringing. She will not be forced to negotiate with an abuser or addict over private matters such as religion or education.
Sole legal custody is generally not shared with another parent in Virginia. Since the vast majority of divorced parents share legal custody and are forced to make all major decisions together, sole legal custody may seem an attractive option. Critics of this arrangement argue that this setup may be more appropriate for single people in the child’s life than for two parents who have mutually dedicated their lives to raising the child.
Pros for a Child – Children benefit most from sole legal custody arrangements when their parents cannot work together in their best interests (for example, when one parent, for reasons such as substance abuse, is dangerous or when a better life companion exists). Sole legal custody can provide both stability and predictability. Again with this arrangement, the child does not have to witness parents arguing over his future. The child does not have to adapt to the whims of a new step-parent as things change.
Even in cases of parental incapacitation where the custodial parent cannot take care of the child day-to-day, a sole legal custodial arrangement is preferable to leaving the child in foster care.
Cons for a Parent – The major downside of sole legal custody involves convenience. Upon divorcing, spouses usually create detailed schedules outlining how they will manage all aspects of the relationship. When one spouse holds sole legal custody, he or she automatically overrides these templets and schedules. For example, if the custodial parent wishes to take the children out of school for a trip when the non-custodial parent expected to have them with no prior notice, he or she often can. This is particularly problematic in the case of a developmentally disabled child. This parent may struggle with regular school hours outside of home, and as such, may have made substantial plans when it comes to schooling, timing, and summer activities. Sporting events are generally less problematic. In these cases, the parents will have to deal with the other parent’s unilateral decision.
Influence on Parenting and Decision-Making
It’s important to note that sole legal custody does not automatically equate to sole physical custody. Sole legal custody means that one parent will make all major decisions for the child, while both parents have the right to day-to-day time with the child, however, who the child resides primarily with is for the court to determine based on the respective parents’ fitness and what is in the child’s best interest. While some parents can work together and amicably come to an agreement (or non-agreement) with respect to whether a major decision implicates solely one parent, or both parents, other parents are not able to, and a court will not consider the lack of cooperation when making the determination of whether to award sole legal custody. A common scenario in informing the other parent of a major decision is to send an email memorializing the decision to the other parent with the language "Please let me know if you have any questions or concerns." When a parent has sole legal custody , they are responsible for making the decision and informing the other parent, "I just made the decision to switch the child’s school," or "The child needs to get braces, I made the decision for them to be put on." The parent with sole legal custody does not need the other parent’s consent, they are responsible for informing the other parent of the decision. When dealing with medical decisions, Virginia statute requires that the parent with sole legal custody also inform the child’s doctor in writing that they have sole legal custody. This way the child’s doctor is on notice that there is a custody order in place that discusses the rights of the parties with the authority to make medical decisions for the child. Sole legal custody refers only to major decision-making for the minor child or children. Regular parental communication with respect to day-to-day parenting decisions is expected between two parents regardless of whether either parent has sole legal custody or not.
Change to Sole Legal Custody
Virginia courts can modify existing legal custody orders if there is a material change in circumstances. Virginia Code § 20-108. The party seeking the modification has the burden to show the material change in circumstances as well as that the requested change is in the minor child(ren)’s best interests. In deciding the modification issue, the court considers whether there has been a change in the circumstances of the parties or in the ability of the custodial parent or any other person or institution to care for, nurture, and raise the minor child(ren). Frye v. Frye, 63 Va. App. 148, 153 (2014).
Material changes which may warrant a change in legal custody include, but are not limited to: change of job (e.g., a move out of state or away from the minor child(ren), transfer in employment), change in marital status of either party, death of a party or significant other, disability or illness of a party or significant other, significant change in the needs of the minor child(ren), return to school by a party, new spouse of a party; criminal activity; financial issues; and substance abuse.
If the parties have settled their legal custody issues (most cases settle) and have an agreement that provides for a periodic review of the award of legal custody, such agreed periodic review provisions are enforceable. Virginia Code §20-107.2(E)(3); Gentry v. Gentry, 244 Va. 334, 345 (1992). Also, many court ordered legal custody arrangements will include an express provision allowing for periodic review and modification of legal custody by the parties.
A legal custody order may also contain express provisions stating that it shall be reviewed after a particular event occurs, such as after a specified time period, or after the minor child(ren) begin school, etc.
A legal custody order may also be voluntary and consensual in nature, and entered by the court when the parents may have no objection to the terms, but the parents want the order incorporated into the record of the court and made enforceable by contempt.
Legal Help and Resources
Consult an Attorney: The first step for anyone seeking sole legal custody in Virginia should be to speak with an experienced family law attorney. They will be able to help you assess your situation and determine the best course of action. You can also get advice on how to present your case in court, should it become necessary.
Child-Focused Workshops: In areas where public resources allow, the court may provide workshops to help parents understand child development and how their children might be reacting to the situation. Mediators or parenting coaches may be appointed to assist in the best interests of the children.
Local Bar Associations: Most localities maintain a list of attorneys who are experienced in the area of family law. While attorneys listed on the bar association’s websites may or may not represent their opinions , the list would generally include those practitioners who have experience in the field.
Support Groups and Community Centers: Another option is to seek out organizations or support groups in your area that deal specifically with divorce and child custody issues. Local community centers may also provide information on resources available to aid you in your journey through the legal system.
Books and Online Tools: Many family law practitioners explore broadly their relevant topics in print. Child-custody professionals may publish books that help parents navigate through the complex issues that arise. Family lawyers may also provide resources or links to helpful websites within their own.
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