During every initial consultation involving custody and visitation disputes, I always explain to the potential client that there are two different types of custody: (1) legal custody, and (2) physical custody. I then attempt to define each type of custody. Routinely, I find myself uttering some variation of the following: “legal custody describes a parent’s legal ability to make the "big" decisions for his or her child” and “physical custody describes where the child lays his or her head each night.” At least twice in the past few months, though, I was asked the elusive question: what does it really mean if one parent has sole legal custody?
Unfortunately, the Code of Virginia does not clearly or practicably define the term “legal custody” (big surprise, right?). Sections 20-124.1 and 16.1-228 each refer to “legal custody,” but none provides an exhaustive list of the decisions the legal custodian has the authority to make to the exclusion of the other parent. I find that this is exactly what both parents—the legal custodian and the non-legal custodian alike—desperately want. Each parent wants to be able to move down a list that begins with: “The legal custodian can…” or another list that begins with: “The non-legal custodian can…” Each parent wants to know his or her rights and responsibilities.
In the end, based upon the Code and the even more helpful body of case law, the best definition I can offer is:
“Legal custody means that one parent has the responsibility for the care and control of the children and has primary authority to make decisions concerning them. These decisions include where the children will live, how they will be disciplined, where they will go to school, and what ordinary medical care they will receive, among other things. It may or may not include the right to select the religious affiliation of the children.”
While it is certainly not the all-exhaustive definition I believe many of my clients desire, it is a start.