JOINT LEGAL CUSTODY
The Virginia statute defines joint custody as follows: Joint custody” means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child. Va. Code 124.1
Joint legal custody provides parents with joint decision-making authority over major, important child related decisions. Legal custody decision relating to the children include medical, educational, religious, and general welfare. 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 or tattoos; when should the child drive; extracurricular activities. These are major decisions, not day to day decisions. Day to day decisions can be made by the parent who has physical custody of the children at any given moment and do not require the other party’s approval.
Under Virginia law, there is no presumption of joint legal custody. Legal custody is determined by the facts of each case. Having said that, judges tend to order joint legal custody because it keeps both parents proactive and involved in the children’s lives. Similarly, child psychologists tend to prefer joint legal custody because they want both parents as involved as possible on the children’s lives. Children who have the benefit of having two parents actively involved in their lives tend to have better outcomes in life.
Joint legal custody requires both parents to resolve disputes of important issues together. One parent cannot unilaterally make such decisions. If one parent makes a unilateral decision and joint legal custody has been ordered by the court, the parent who made the decision can be subject to contempt of court for violating joint legal custody. That party may be sanctioned by the court by being held in contempt of court. Punishment can include being ordered to pay the other party’s attorney’s fees, losing custody rights, or jail time.
Given the severe sanctions for violating joint legal custody, it is important for parents with joint legal custody to consult and reach agreement with the other side. When in doubt about whether a decision falls under legal custody, assume it does and consult the other parent before making the decision on your own. This way you cannot be hauled into court. A decision that you think is not important requiring the other party’s consent may be viewed by a judge as the type of decision requiring joint agreement.
Any agreement between you and the other parent relating to important custody decisions must be in writing, even by an email or text message exchange. Make sure the writing shows that the other party consents to the decision. Otherwise, the other side may claim that they never gave consent for the decision, that you acted unilaterally, and try to hold you in contempt of court. Keep the written back and forth exchange showing your suggestion on how to resolve the issue and the other parent writing back to you with his or her approval. Such a written exchange is proof that your complied with joint legal custody.