4.5 Joint Custody

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2019 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. ⁴³

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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. ⁴⁴ 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. 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

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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 more in the child's life, neither experiences the sadness or sense of loss that 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. . . ."

4.503 Disadvantages of Joint Custody.

A. Instability. A custodial arrangement that involves shuttling the child between different homes, religious institutions, and lifestyles, and subjects the child to inconsistent rules, methods of discipline, and styles of parenting, results in continual instability.

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 life makes joint custody more of a challenge.

D. Modifications. A joint custody arrangement is more likely to require modification in the event that one of the parents remarries or has a change in employment.

E. Need for Proximity of Parents. Opportunities for mutual decision-making are limited when the parents live far apart.

F. Difficulty in Cooperating. The nature of divorce makes cooperation, which is necessary for joint custody to work, very difficult. Practitioners and trial courts continually advise and instruct parents of the need for cooperation if joint custody is to be successful. Moreover...