The statute in Virginia defines sole legal custody as follows: “Sole custody” means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child. Va. Code Section 124.1
Legal custody means which parent (one or both) has/have the right and duty to make important decisions relating to the children. Such legal custody decisions involve the following: medical, dental, vision, psychological, medication, testing, procedures, vaccinations; educational issues (where the children should attend school, should the child be tested for learning differences), religious affiliation, where the children should reside, should the child get piercings; when should the child drive; extracurricular activities. These are major, not day to day, decisions. Day to day decisions are made by the parent who has physical custody of the children at any given moment.
Sole legal custody means that one parent exclusively makes important decisions relating to the children. The parent who having sole legal custody can make these decisions without the input, approval or prior knowledge of the other parent. The parent having sole legal custody is not legally required to inform the other parent of their child related decision.
What are your chances of being granted sole legal custody by a court? There is no presumption in Virginia for or against sole legal custody or for or against joint legal custody. Most judges tend to want both parents involved in the children’s lives and decision making, and therefore favor joint legal custody. Where you have two parents who are involved in the children’s lives and are rational people, courts rarely give sole legal custody to one parent. The general view of the psychological community is that children have better outcomes, socially, academically, and emotionally when both parents are actively involved in their lives. So, judges believe joint legal custody, and not sole legal custody better promotes both parents, especially the parent who has less physical time with the children, to be proactive in the children’s lives. Also, when the non- custodial parent is involved in the children’s lives, he or she is more likely to pay child support. This is another reason Courts have for avoiding sole legal custody.
There are, however, situations where the court orders sole legal custody to one parent. These cases include the following: one parent cannot make proper or rational decisions, such examples include: the parent is an alcoholic, substance abuser, has been out of the children’s lives for a period of time, committed domestic violence on the other spouse or child abuse and neglect of the children, is mentally unstable, is incompetent, has made poor decisions in the past. Also, when the parties cannot communicate with each other, one parent plays no role and is not involved in the children’s lives, where the non- custodial parent lives some distance from the custodial parent, or where a parent does not know his kid such that he or she could not even pick their kids out of a police lineup.
In sum, if you go to Court for a custody trial and you are seeking sole legal custody, make sure you have a solid evidence and good reasons. While there is no presumption against sole legal custody, you will have to convince a judge against a predilection for joint legal custody.
A final point: what happens when one parent has sole legal custody and make a child related decision that the parent without legal custody disagrees. The disagreeing parent has the right to go to court to have a judge review the decision to determine whether it is in the children’s best interests and may overturn the decision.