What is Legal vs. Physical Custody Under Virginia Law?

What do these two couples have in common, other than wealth and fame? Young children, who are soon to be the subject of custody and child support disputes. A recent article published on MSN reported that Akerman’s separation is “As amicable as can be, and they want to do what’s best for their son.” How do you know what’s best for your child? How do you know what’s best for you?

Virginia distinguishes between legal and physical custody, and joint, shared or sole custody. Legal custody pertains to a parent’s right to make long term decisions for the child, such as education, medical care, religion, etc. Physical custody pertains to a parent’s right to make decisions as to the child’s daily needs when the child is in their care.

Joint legal custody means 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. Joint physical custody is where both parents share physical and custodial care of the child.

Shared custody, as provided in Virginia Code Section 20-108.2(G)(3), applies when each parent has physical custody of a child for more than 90 days each year and “sole” custody exists where one parent has fewer than 90 days of custody each year. Although the difference between 89 and 90 days of custody may seem trivial, it can severely impact an award of child support and a parent’s ability to make decisions effecting the child.

Child support is calculated pursuant to the statutory guideline formulas prescribed by § 20-108.2, which are based on the relative incomes of the parents, the ratio of physical custody, and the needs of the child, including health care and day care costs.

Shared custody support, however, is calculated based on the incomes of the parents and the ratio in which the parents share the custody and visitation of the child. The difference between 89 and 90 days, or the difference between sole and shared custody, therefore, may result in the application of different child support formulas, and a reduction in the support award to the parent with primary physical custody.