4.5 Joint Custody

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

4.5 JOINT CUSTODY

4.501 In General.

A. Definition.

The vast majority of modern negotiated custodial arrangements result in joint custody, although this area of negotiations is often a major hurdle to reaching a successful separation agreement. However, despite having a statutory definition under section 20-124.1 of the Virginia Code, the term "joint custody" remains nebulous as three different combinations of legal and physical custody would all be considered joint custody. ⁷⁰³ Thus, in practice, the drafters of an agreement should define "joint custody" in the agreement itself. Often, this means addressing legal and physical custody separately in the agreement.

B. When Awarded.

The concept of joint custody has evoked strong reactions from most authorities in the past. Some felt that it should be awarded in almost all cases, while others preferred that it be awarded infrequently, which was the prevailing view in most Virginia courts in the past. But Virginia courts today favor awarding some form of joint custody if at all possible under the specific facts of the case.

Judges may differ as to whether joint custody should be awarded over the objections of either parent, but it is almost always awarded if the parents agree to it. Unfortunately, some courts award joint custody as a compromise. But parents who are less than fully cooperative may not have the flexibility and commitment necessary for a successful joint custody arrangement. ⁷⁰⁴ On the other hand, refusal to award joint custody under such circumstances can be perceived by the noncustodial parent as rewarding the intransigence of the custodial parent. In fact, a custodial parent may fabricate conflict in order to sabotage the possibility of a joint custody award.

Section 20-124.3(6) of the Virginia Code, however, requires a court to consider the propensity of each parent to actively support contact between the child and the other parent as a factor in the determination of custody. ⁷⁰⁵ This requirement should encourage parents to cooperate during negotiation and pendente lite periods.

4.502 Benefits of Joint Custody.

Joint custody offers a wide range of benefits for both the child and the parents. For the child, it helps to alleviate the sense of loss that is felt following a divorce. The damage resulting from divided loyalties and fantasies about the absent parent is reduced, and the child does not have to witness the degradation of the parent who is legally "eliminated." The child also benefits from continued exposure to each of the parents as role models. Most importantly, children benefit from the involvement of two parents in their lives, which conveys the message that both parents love their child and make the child their highest priority.

Parents benefit from joint custody by avoiding a traumatic and expensive custody contest. Since both parents in a joint custody arrangement participate significantly in the child's life, neither experiences as much sadness or sense of loss as noncustodial parents often feel. It may also enhance the relationship between the divorced parents, and the parents may benefit individually as well. Joint custody may provide psychological comfort for the parent who otherwise may have had sole custody to know that important decisions will not be made alone and that another parent is available in the event of a crisis. A joint custody arrangement may even arouse a latent commitment to parenting. So many times we hear, "but he/she never raised a finger or gave a darn about raising the child during the marriage, and now. . . ."

While equal joint custody may appear to entail instability and inconvenience from one week to the next, it can provide a much more important stability throughout a child's life. Over time, separated parents find new priorities that pull them in different directions (both geographically and metaphorically) and compete with their interest in the child's relationship with the other parent, including new relationships, stepfamilies, extended families, employment opportunities, and new disputes between the parents. In such situations, the less of a role a parent has in the child's life, and the less power a parent has in the co-parenting relationship, the less important that parent becomes in competition with his or her new priorities. But unequal custody usually tends to become more unequal over time, not less. For children to essentially lose a parent from their lives is much worse than the daily inconvenience of having two homes to lose their schoolbooks in. But with completely equal joint custody, neither parent is more important than the other. A parent seeking to move far away, or to make parenting time unequal, will be at a disadvantage, because 50-50 custody will have been the child's status quo.

4.503 Disadvantages of Joint Custody.

A. Instability.

The older view of joint custody is that "shuttling" the children between different homes subjects them to continual instability, confusion, and turmoil. This is especially true when the parents embrace very different and inconsistent religious institutions, lifestyles, rules, methods of discipline, and styles of parenting. It is also more valid when dealing with children who are especially averse to change and inconsistency. On the other hand, many children have lived with 50-50 custody their whole lives, know many peers living in the same kind of arrangement, and experience it as normal.

B. Logistics.

Logistical difficulties occur (for example, the problems that arise from different schools, clothes, and friends, and arrangements for pick-ups and drop-offs and extracurricular activities). These problems, however, are common in any parenting arrangement.

C. Mobility of Society.

Even if parents share child-rearing philosophies and methods and live sufficiently near one another to permit continuity of school, friends, and activities, the mobility of modern

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