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Accident Responsibility for Minor with Driver's License in Divorce

If my minor child holds a valid Virginia driver's license, is in a joint custody arrangement, is insured under my policy (since his primary residence is my home), is on visitation with his father, can he use his father's vehicle, and if so, would his father have to insure him on his policy? If the child had an accident while in his father's custody, whose insurance policy would cover it?
Thank you!


You have a very interesting question (see how much of a nerd I am ). The answer is in your auto policy. Probably the key definition is going to be (family member).

You say he is in your policy, so I am assuming that means he is listed under your policy as a driver. If this is correct, he is insured and even if a primary policy does not cover him, your policy will as a secondary (subject to some restrictions).

Now, the question is, when he is at his Dad’s home, should he be insured in his dad’s policy? The answer is “it depends.”

Remember that insurance follows the car (unless you have a secondary policy situation, which would follow the driver if the vehicle is not insured). This means that it depends of who’s car are we talking about. If your child has his own car that is insured under your policy, then your policy will cover regardless of joint custody or residency (you pay for that coverage).

However, if your child does not have a car, but is driving either Dad’s or Mom’s car, then a different coverage approach is taken.

The coverage issue would arise if your child is driving Dad’s car and Dad does not have her in the policy. Most insurance policies would provide coverage for a family member to drive (usually child meets this definition). However, most insurance policies restrict family member to a person living with you and residing at your home.

It is probable that since his primary residence is home, that would be his place of residency for all legal purposes. Joint custody is not residency, and insurance policies speak of residence (unless you have a different policy that I have not seen, which is possible.)

This is important because if your son does not meet the residency requirement under the policy he would not had coverage under that portion of the policy.

Policies also provide coverage under the omnibus clause section. This clause basically covers any driver as long as that driver has permission to drive AND does not have regular access to that vehicle.

Basically, this clause is supposed to cover you when you loan your car to a friend and that friend crashed. However, the exclusion tries to avoid people having one driver in a policy and have people that drive the vehicle all the time be covered. If people are driving the vehicle all the time, they should be listed in the policy.

This clause attempts to exclude those who use the vehicle regularly. So if your son has this vehicle available to him, then insurance company might claim that there is no coverage because he has regular access.

So it depends on how much access there is to that one vehicle. If your son never drives his car, then that is one thing. But if there is regular access to the car and he is not on that policy, his policy will probably not cover him and your policy would have to step in.

There are many issues here. Like exactly what the language of your policy is. Also, Virginia might override the residency analysis and impose some kind of joint custody requirement.

I hope this helps
Good Luck

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