I have heard that if a parent has their child for XX amount of days per year, they can technically request joint physical custody in the courts and be granted it due to the number of days. If so, what is the minimum a parent can have their child to get joint custody. State is Virginia.

sorry, they can request it, if they don't have the child any number of days, The reason for the days, the other parents objections, how they can deal with issues of school and other activities all play a role.

There is also legal and physcial custody ( not the same)

Joint custody if the one parent seldom has the child has little value, that I can see

Well, I mean, a friend of mine is trying to get joint custody of his son because he feels he has a better home for him, and his lawyer told him that if he had his son for at least 81 days out of the year, he could ask for joint custody and even if they didn't have joint time, he could get the joint custody. Also, my husband and I have his son for over half the time, but his son's mother has primary physical custody because she states he LIVES with her. And yet she freely hands him over to us any chance she can get, and so we've ended up having him more of the time because of this. My husband wants to go for joint custody because of this reason (among others). We feel we have the better home for him too.

In some states any time away from one parent that the courts allow IS joint custody. The primary custody (lions share of time) goes to the custodial parent. There are 2 types regaurded. 1) physical custody 2) legal custody.

So having care and control of the child by court order can be called joint and not be a 50/50 time situation.

Depending on the state any one or more of those factors are under consideration.

You have this mixed up. As CalifDad said, there is Legal and Physical custody. I would suspect your husband already has joint legal custody, since he has visitation rights and has a say in how the child is reared.

The mother currently has primary physical custody, because the child does live with her. It sounds like your husband wants primary physical custody. If he can show that the child spends more than 50% of the year with him, then he may be able to get.

I suspect, however, (especially is child support is involved), that the mother will fight this and start limiting the amount of time she hands the child over. So if the goal is to be able to spend more time and provide a better home, filing for primary physical custody may be counter productive.

You have this mixed up. As CalifDad said, there is Legal and Physical custody. I would suspect your husband already has joint legal custody, since he has visitation rights and has a say in how the child is reared.

The mother currently has primary physical custody, because the child does live with her. It sounds like your husband wants primary physical custody. If he can show that the child spends more than 50% of the year with him, then he may be able to get.

I suspect, however, (especially is child support is involved), that the mother will fight this and start limiting the amount of time she hands the child over. So if the goal is to be able to spend more time and provide a better home, filing for primary physical custody may be counter productive.

Yes, right now my husband has joint legal custody and the mother has primary physical custody. Technically if it goes by time, my stepson actually LIVES with us because he's with us more. But of course, oh no he really lives with her because that's what it states in the court order. By the court order, we are only supposed to get him every other Wed between 3-5pm-Sunday at 5. I dont think that has EVER happened. WHich is fine with me, because honestly I'd rather he be with us the majority of the time because they smoke in their house and we always get him back reaking of smoke. In fact, I had to actually smell a pair of his shoes to see which ones were his moms because we have the same pair for him at our house, and theirs still smelled of smoke after a week of having him in our smoke free home.

I work full time but my hours work that I am able to homeschool, and so I have been doing schoolwork with both my stepson and my daughter, which she hasn't been doing with him. She even stated to my husband that it was nice we could do the preschool things with him this year since she doesn't want to put him in preschool yet. I would love to continue schooling him too, but of course that would never happen because as long as she has a say so, she's not going to agree to something that would take away her custody...and her support. She doesn't work so she relies on the child support, even though it's based on her having him the majority of the time. It would be nice if we could actually put that money towards savings for him instead of being used for Lord knows what.

Is that true that if he can show having his son more than 50% he COULD get primary custody? He does want at least joint custody, but if he had primary it would be possible to actually homeschool him too and plus, it would be easier to put him in more estracurriculars, which she doesn't do, but we have. And he would deifnitely have to hire a lawyer if he did go for that, but I have a question about that too. Does it look worse on the father if he goes to court for custody WITH a lawyer but the mother doesn't have a lawyer?

First, he has every right to be represented by legal counsel and its highly recommended that he do so. It will not reflect badly on him if she doesn't have her own counsel.

You need to document all the time the father spends with him as well as the time he spends in your home. The time YOU spend with him without his father will probably not be counted.

Well, that's all gravy, my husband spends more time with our kids than I do because he lost his fulltime job and is working in the evenings now less hours, so he spends most of the days with the kids anyway.
We have been keeping records of when he is with us, but what I'd like to know about THAT, is what time of documentation should we be doing? I take pictures all the time, so there is rarely a day when I don't have pictures of our kids, I mark down whenever we have him, and if it's not visitation times, I mark down the reason we got him.

Sometimes it's been because we had things we wanted to do with him, sometimes it's because the kids get invited to birthday parties, sometimes it's because she needs us to get him...she's had us get him before for reasons such as: her daughter getting sick, ants in the house, fighting, needed a babysitter, etc. We NEVER turn it down if she wants us to get him.

Just document everything.

I have heard that if a parent has their child for XX amount of days per year, they can technically request joint physical custody in the courts and be granted it due to the number of days. If so, what is the minimum a parent can have their child to get joint custody. State is Virginia.

In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent./at least 128 days a year/
It is not only about how many days per year a child lives with one parent.The joint/shared/ physical custody is not automatically granted.

The court looks very closely at Joint Custody . The most important factor to Joint Legal Custody to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare.
Other factors are:
* willingness to share custody;
* fitness;
* child's relationships with parents;
* child's preference;
* ability to stabilize child's school and social life;
* closeness to parent's homes (primarily a factor during the school year) ;
* employment considerations (e.g. long hours, extensive travel, etc.);
* age and number of children;
* financial status;
* benefit to parent.

The court looks very closely at Joint Custody . The most important factor to Joint Legal Custody to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare.
Other factors are:
* willingness to share custody;
* fitness;
* child's relationships with parents;
* child's preference;
* ability to stabilize child's school and social life;
* closeness to parent's homes (primarily a factor during the school year) ;
* employment considerations (e.g. long hours, extensive travel, etc.);
* age and number of children;
* financial status;
* benefit to parent.

Thank you for the info, could you go answer some questions about these points for me:
*ability to stabilize child's school and social life: would this pertain to moving around a lot to different counties? Also, what about extracurricular activities, such as sports, playdates, birthday parties, etc?
*employment considerations: mother will be starting a part time job, father works short hours in the evening when the children are in bed already and spends day hours with the children.
*my SS is 3 1/2, he has a 6 month old sister with his mom and a 2 1/2 year old sister and 9 month old brother with his father.
*financial status: father gives mother support, her husband has been the sole supporter in the family while she has been a sahm relying on her husband and the child support and wic to financially support son. Father pays all co pays for medical and child is under stepmother's medical insurance. what do you mean about financial status other than that or could be completely different?
*benefit to parent: I dont know what you mean by this at all?

*employment considerations: mother will be starting a part time job, father works short hours in the evening when the children are in bed already and spends day hours with the children.
*financial status: father gives mother support, her husband has been the sole supporter in the family while she has been a sahm relying on her husband and the child support and wic to financially support son. Father pays all co pays for medical and child is under stepmother's medical insurance. what do you mean about financial status other than that or could be completely different?
Emploiment and financial status have never had great weight in child custody proceedings.Emploiment is a factor for joint/shared/ custody only if one parent must work at night,or he/she goes on a long bussines trips.
Financial status must be understood as a financial ability of a parent to take care about a child. It should not be read as “The parent who gets more will be awarded with sole/joint custody because that parent gets more money…”



*benefit to parent: I dont know what you mean by this at all?
“Benefit to parent” means tax deductions,tax benefits/if possible/,maternity pay/leave , etc.

mother will be starting a part time job, father works short hours in the evening when the children are in bed

It is not permanent. I know no Court which will award custody based on someone's unemployment or underemployment.

Okay if that's the case with tax deductions etc, how would that not benefit both parents? Do you mean like if one parents provides more for the child then it would benefit them more for tax deductions? I know we went to court so we could claim my SS every other year because his mother denied us that, and the judge pretty much laughed her out of court when she said she didn't want us to claim him because she doesn't work and had no right other than joint filing with her husband. She TRIED to get to claim him every year, but the judge gave us the right to claim him every other year.

*my SS is 3 1/2, he has a 6 month old sister with his mom and a 2 1/2 year old sister and 9 month old brother with his father.


The fact he has a sister with his mother is a factor against joint/shared custody, because it means children' separation.

The fact he has a sister with his mother is a factor against joint/shared custody, because it means children' separation.

Well it's his half sister with his mom, but he also has a half brother AND a half sister with his father, so they couldn't say child separation on one side and not the other. Wouldn't they want him to have equal time with both sides of siblings?

Well it's his half sister with his mom, but he also has a half brother AND a half sister with his father, so they couldnt say child separation on one side and not the other. Wouldn't they want him to have equal time with both sides of siblings?

I really cannot understand why your obsessional goal is to get possession and full control of her child.
Why do you think that the father is better parent?
Do not forget that you are only a stepmother of the child thus you have no legal resources in that case.

Here it is what I understand:You want two children to live with you and your husband,one child to live with the mother and her husband and one child to be treated as a ball.I guess it is right in your eyes.

Okay if thats the case with tax deductions etc, how would that not benefit both parents? Do you mean like if one parents provides more for the child then it would benefit them more for tax deductions? I know we went to court so we could claim my SS every other year because his mother denied us that, and the judge pretty much laughed her out of court when she said she didnt want us to claim him because she doesnt work and had no right other than joint filing with her husband. She TRIED to get to claim him every year, but the judge gave us the right to claim him every other year.

If you make child support payments and are looking for possible tax deductions, you cannot receive a special tax credit or deduction. If you receive child support payments, the payments are non-taxable, but they do not qualify for any specific tax relief.

Child support is tax-free for federal income tax purposes, meaning neither the recipient spouse nor the child owes taxes on it. However, unlike spousal support, child support payments are not tax-deductible by the parent who makes the payments.
Generally, in order for someone to claim a child as a dependent, a parent must provide at least 50% of the child's support during the tax year.

Under these circumstances, if the child received more than half of his or her total support for the year from one or both parents (the rest can be paid by other relatives or public benefits) and was in the custody of one or both parents during the year, the IRS rules assume that the custodial parent (defined as the parent who had custody of the child for the greater part of the year) should get the exemption for the dependent. However, the parties may change this presumption and allocate the exemption to the noncustodial parent if either of the following are true:

* The divorce decree or separation agreement contains a provision in which the custodial parent waives the right to claim the dependent exemption. (The rules are slightly different if the agreement was entered into prior to 1985; the noncustodial parent must also provide at least $600 of support to receive the exemption.)
* The custodial parent signs a declaration (using IRS Form 8332) relinquishing the right to claim the dependent exemption, and the noncustodial parent attaches this declaration to that year's tax return. Using this form, the custodial parent can relinquish the exemption for one year, a number of years, or forever, depending on what the parties agree to.




Is that true that if he can show having his son more than 50% he COULD get primary custody? He does want at least joint custody, but if he had primary it would be possible to actually homeschool him too and plus, it would be easier to put him in more estracurriculars, which she doesn't do, but we have. And he would deifnitely have to hire a lawyer if he did go for that, but I have a question about that too. Does it look worse on the father if he goes to court for custody WITH a lawyer but the mother doesn't have a lawyer?


I know we went to court so we could claim my SS every other year because his mother denied us that, and the judge pretty much laughed her out of court when she said she didnt want us to claim him because she doesnt work and had no right other than joint filing with her husband. She TRIED to get to claim him every year, but the judge gave us the right to claim him every other year.

Here I am totally confused.
You said you were in Court where it was determinated your husband was the primary custodian??

Okay if thats the case with tax deductions etc, how would that not benefit both parents? Do you mean like if one parents provides more for the child then it would benefit them more for tax deductions? I know we went to court so we could claim my SS every other year because his mother denied us that, and the judge pretty much laughed her out of court when she said she didnt want us to claim him because she doesnt work and had no right other than joint filing with her husband. She TRIED to get to claim him every year, but the judge gave us the right to claim him every other year.

Legally speaking:
1. The judge was incompetent and he/she did not follow neither federal nor state guidelines.
Generally, the IRS will honor the terms of the custody agreement /order regarding which parent is entitled to the dependency exemption for their child/ren. As a rule, the primary custodial parent ) is eligible for the exemption if there is no agreement. The custodial parent may complete a Form 8332 to release the exemption to the non-custodial parent.
... but it is contrary to

his son's mother has primary physical custody


2. You have just fabricated that story.;)

I fabricated it how so? We have spoken to the IRS. They have said that LEGALLY speaking, they check to see who has the child most of the time. If it cannot be proven, then they go by the parent who has the largest AGI in the household. That would have been us every year. My husband told the judge that, and because the mother of the child was not working and because we provide support PLUS have him the majority of the time (even though the mother has primary PHYSICAL custody), the judge granted us the right to claim the child every other year on our taxes. LEGALLY, we could have claimed him every year because we have him more and we have the largest AGI, but now we have it court ordered where it's every other year. So what did I fabricate?

You seem very opinionated for someone who says this is for legal advice not opinions. I KNOW I am the stepmother. I also know that my stepson is taken better care of in our home then in hers. We gets him for weeks and he's fine when he's with us, but suddenly health problems emerge every time he's with her for prolonged periods. We ONLY want the best interest for the child. You act as though I'm an evil stepmother who wants to take her child away, and that is deifnitely not the case. If you knew all the nonsense this woman has put our household through with her flat out lies to the judge and everything else that has happened, you would not be saying that. She told the judge that I attacked her [in front of her son]. I did nothing of the sort. She lied about me to everyone and anyone who would listen, saying things like I hated her son and how I neglected him and abused him and stabbed him with a pen, all because she claimed I didn't clean him when he was in diapers and she saw he had desitin in his "area" and said it was dirt. This was after my mother in law had had him and changed him last before dropping him off with her, but she still blamed me. She had her friends calling and texting me, harassing me, saying my husband was out cheating on me, calling me all sorts of nasty derogatory names you wouldn't believe would come out of a MOTHER'S mouth... or maybe you would.

I'm not trying to get one up on her. I have been nothing but nice to her and tried to keep things civil between us for their son's sake, but she has taken everything said and done and twisted it into something not even remotely close. We just want to best for their son.

So, maybe you should get all the facts before you start judging someone in my situation with what YOU think or believe is the case. You're not even close.

We have spoken to the IRS. They have said that LEGALLY speaking, they check to see who has the child most of the time.
Mwhaha-it makes me laugh!
IRS is not autorized to investigate IRS must follow the federal and the state law.If there is a court order where it is said X is a primary custodial parent,IRS can do nothing.
There is no law where it is stated “Who has the largest adjusted income he will get a dependency exemption.”

So, maybe you should get all the facts before you start judging someone in my situation with what YOU think or believe is the case. You're not even close.
If someone told me that she was able to drive along with a speed 5,000 mph with her Chevy ,I do not need to know the car in every detail.:p

We have spoken to the IRS. They have said that LEGALLY speaking, they check to see who has the child most of the time.

The IRS recently released new rules on this issue. A discussion of those rules can be found here:
New IRS Regulations May Affect Your Right To Claim Your Child (http://www.dadsdivorce.com/articles-archive/1625)

Nothing is said about AGI and I don't believe that is a factor. The only factor is the "counting nights" rule. As the article noted, this has to be re-established annually.

The IRS will not investigate this. The first return filed will get the deduction unless challenged. In such a case, the claiming parties will need to bring their proofs and the more credible proofs will be granted the deduction.

You also have go understand that what you think is best for the child is not necessarily what a court will see has best. The courts have to adhere to the letter and spirit of the law. And that's all that matters to the courts. And that's what GV is trying to tell you.

You also have go understand that what you think is best for the child is not necessarily what a court will see has best. The courts have to adhere to the letter and spirit of the law. And that's all that matters to the courts. And that's what GV is trying to tell you.

EXACTLY!!!
Let me give you an example:
A Dad is in possession of his child every day/ from Monday to Sunday/from 7am to 9pm.It is 98 hours per week.98/24=4.08
How it will be referred to as the “counting nights rule”? As ZERO!



Yes, right now my husband has joint legal custody and the mother has primary physical custody.


his son's mother has primary physical custody because she states he LIVES with her.


the judge pretty much laughed her out of court …but the judge gave us the right to claim him every other year.



We have spoken to the IRS. They have said that LEGALLY speaking, they check to see who has the child most of the time. If it cannot be proven, then they go by the parent who has the largest AGI in the household.

No comment:cool:

Well if that is the case then I guess both the person who I spoke to with the IRS AND the judge are both wrong and should have gotten their facts straight before giving out wrong information.

I'm going from what is told to us, so I guess I'm not sure who to believe at this point, and maybe it's just safe not to ask questions and just go with que sera, sera. Thanks for the info anyway.

Since you seem to know what you're talking about, what is the law regarding school selection then? If they have joint legal, both have a right to decide what to do with their child, correct? OR am I wrong? Since the mother has primary physical, does that mean that she has the right to put their child in whatever school wherever she wants and whenever she wants, or does she and the father have to be in agreement because they have joint legal? This question has been pretty mind boggling for us, because the judge (who apparently doesn't know what she's talking about) said that both parents have to be in agreement... whats your take on this?

Joint legal usually means an equal decision as to schooling. If they can't agree they may need to go back to mediation.

So as far as joint decision schooling goes, what would happen if the primary custodian just placed their child in a school without discussing the details with the non primary? Like if she just decided to put him in a school and not get the father's consent?

This question has been pretty mind boggling for us, because the judge (who apparently doesnt know what she's talking about) said that both parents have to be in agreement...whats your take on this?


Give me the Court,date and the docket number and I will engage that a judge who does not follow the federal law will be reported to the state's bar.Even in joint physical custody it is a sort of abuse of discretion to give perpetual rights to one party only.
The Professional Regulation Department of the VSB will be happy to see how a judge rules against the federal law.
I can check it easy. I have access to all cases in the USA since 1995 and to all main cases before 1995.


You cannot convince me of that: the judge gave her primary physical custody because she stated he lived with her and that the judge gave you the right to claim him as dependent because your husband were the primary physical custodian because he lived with him and it was done after an investigation of IRS.And even more-IRS is not interested in the legal standing but is interested in who has the largest adjusted income.
/Read your posts carefully/

Oh, and I have three children now, and plan on homeschooling all my kids. My eldest is my stepson, .
Think legally-you have two!Or maybe the judge said you were the true mother?
Thus I assume you hate that woman and it is your main motive.You want to play "mother" to her child.
I would accept a post which begins with "I am writing in behalf of my husband", and I pay no respect to people who put in their info WAZOO


Again-I do not believe in your entire story and I think I wasted my time.

So as far as joint decision schooling goes, what would happen if the primary custodian just placed their child in a school without discussing the details with the non primary? Like if she just decided to put him in a school and not get the father's consent?

Then the NCP would be able to take this back to the court and protest that he was not allowed to exercise his rights.

What you seem to be missing here is that the law conveys certain rights AND responsibilities on both parents when they have split. But the court does not sit and watch what happens. If there is an issue with one parent not allowing the other their rights, then the other needs to go to the court for redress.

Then the NCP would be able to take this back to the court and protest that he was not allowed to exercise his rights.

What you seem to be missing here is that the law conveys certain rights AND responsibilities on both parents when they have split. But the court does not sit and watch what happens. If there is an issue with one parent not allowing the other their rights, then the other needs to go to the court for redress.

Thank you for answering the question. I just wanted to make sure that I knew the facts when it came to the joint legal rights of both parents.

Give me the Court,date and the docket number and I will engage that a judge who does not follow the federal law will be reported to the state's bar.Even in joint physical custody it is a sort of abuse of discretion to give perpetual rights to one party only.
The Professional Regulation Department of the VSB will be happy to see how a judge rules against the federal law.
I can check it easy. I have access to all cases in the USA since 1995 and to all main cases before 1995.


You cannot convince me of that: the judge gave her primary physical custody because she stated he lived with her and that the judge gave you the right to claim him as dependent because your husband were the primary physical custodian because he lived with him and it was done after an investigation of IRS.And even more-IRS is not interested in the legal standing but is interested in who has the largest adjusted income.
/Read your posts carefully/

Think legally-you have two!Or maybe the judge said you were the true mother?
Thus I assume you hate that woman and it is your main motive.You want to play "mother" to her child.
I would accept a post which begins with "I am writing in behalf of my husband", and I pay no respect to people who put in their info WAZOO


Again-I do not believe in your entire story and I think I wasted my time.

The judge didn't give one parent full rights to claim, she gave them both the right to trade every other year to claim for taxes.

Secondly, my stepson is 3. He's not in school yet, and I DO homeschool our kids, and that includes him when he's with us. Not necessarily bookwork because they're young, but I DO abcs and numbers and shapes and colours with them both. My youngest is not old enough for that yet, but when he is, I will be doing the same with him. Homeschooling means schooling at home. I didn't ask for your opinion, and you don't know me or the situation, I was just asking for LEGAL ADVICE which is what this forum is for, is it not? SO that being said, I don't need YOU to give me your OPINION about the situation, I was asking for your legal advice. Honestly, whether you believe me or not means nothing to me, because I know the truth and I haven't lied about anything I've written here.
I don't hate the mother, I would just much prefer my husband's son to be in a home where he's loved and cared about 100% and not used against the other parent as she does ALL the time. Apparently you favour the mothers' sides, because if you didn't you wouldn't be giving an opinion of that sort on a legal forum.

So if you're going to answer any LEGAL questions I post, please make sure it's a legal answer not an opinionated one. Thanks.

Please do not presume to dictate who may answer your questions or how. As long as a response does not violate the rules of this site, then its valid. If you don't like the advice given you can ignore it. If you think it violates the rules, report it. But sometimes it is necessary to include more then cites of the law when answering a legal question.

Teaching children their ABC's and home schooling are two very different things.

After reading through (and I have not been part of this) I am beginning to question the whole scenario based on some inconsistencies - and, of course, OP's attitude.

If the argument is over who has the child the majority of the time in NY an IRS (tax) ruling is meaningless when custody/visitation are involved. Family Court cares nothing about what IRS determines.

Judy, you know what's even crazier? Read what I've put in bold below:

Yes, right now my husband has joint legal custody and the mother has primary physical custody. Technically if it goes by time, my stepson actually LIVES with us because he's with us more. But of course, oh no he really lives with her because that's what it states in the court order. By the court order, we are only supposed to get him every other Wed between 3-5pm-Sunday at 5. I dont think that has EVER happened. WHich is fine with me, because honestly I'd rather he be with us the majority of the time because they smoke in their house and we always get him back reaking of smoke. In fact, I had to actually smell a pair of his shoes to see which ones were his moms because we have the same pair for him at our house, and theirs still smelled of smoke after a week of having him in our smoke free home.


There is someone else on this site who "just happens" to also be from Virginia, who "just happens" to also have a three-year-old stepson, who "just happens" to also have a habit of smelling shoes to determine which pair are Daddy's and which pair are Mommy's:
https://www.askmehelpdesk.com/family-law/stepparent-drugs-custody-499073.html#post2486054

J also have a habit of smelling shoes to determine which pair are Daddy's and which pair are Mommy's:


I am carried away by the idea to assign writing a legal essay as homework to my students.The topic will be:
"Is it possible to get sole custody if you smell to high heaven shoes":):):)

I am carried away by the idea to assign writing a legal essay as homework to my students.The topic will be:
"Is it possible to get sole custody if you smell to high heaven shoes":):):)

:D... I like to see that:eek:

I am carried away by the idea to assign writing a legal essay as homework to my students.The topic will be:
"Is it possible to get sole custody if you smell to high heaven shoes":):):)


And you KNOW one of your students will post the question here and we'll all scramble to say we don't do homework.

This is a classic post - 10 points out of 10. No, 11 out of 10.

I am carried away by the idea to assign writing a legal essay as homework to my students.The topic will be:
"Is it possible to get sole custody if you smell to high heaven shoes":):):)

Does anyone else get the pun?

"SOLE custody....SHOES"

... I need more sleep :D :D :D