CHILD CUSTODY
Issues concerning child custody are usually the most emotional of all. It is common for the parent who has custody to try to alienate the children from the other parent. Some parents who have custody try to exclude the other parent from the children’s lives completely. Sometimes they do so with good reason such as when the other spouse is dangerous or engaged in criminal activity. Other times, child custody is simply a weapon that one parent wields against the other. Another source of conflict is differences in parenting styles and judgment about what the children should be doing. Perhaps the most difficult issue to face divorced parents is what to do when one wants to move.
These child custody issues seldom come with clean and simple answers. The solutions are often messy and frequently leave one party very dissatisfied. If one parent is reasonable and the other is not, workable compromises may not be possible.
In Virginia, the judge has a lot of leeway in resolving conflicts over child custody. In making those decisions, Virginia law says the judge is required to put the best interests of the child first. A question that we are frequently asked is “at what age is the child permitted to choose which parent to live with?” The answer is that under Virginia’s child custody law, the child’s preference is a factor the judge can consider but the child’s views are not binding on the judge. The older the child is, the more weight their views will be given, but the choice ultimately lies with the judge.
The judge in Virginia isn’t limited to the parents when deciding child custody. Section 20-124.2 of the Virginia code allows anyone “with a legitimate interest” to petition for custody of a child. This provision is often invoked by a grandparent when both parents are unfit for one reason or another.
Virginia Child custody cases frequently involve additional participants acting in an official capacity. It is customary for the court to order home studies in which a social worker is sent to the houses of the contending parents. The worker looks at the dwelling, talks with the parent and sometimes the children, and reports what he or she observes.
It is also customary for the court to appoint a guardian ad litem to represent the interests of the children. The authority to make such appointments is granted by Section 16.1-266 of the Virginia Code. The guardian ad litem is a lawyer whose mandate is to represent the “best interests” of the child.
While laudable in concept, this idea frequently diminishes rather than enhances the quality of the decision making. Occasionally, judges will defer so much to the opinion of the guardian ad litem that the lawyer comes close to supplanting the judge as the actual decision-maker. Apart from required courses in the law concerning children, the guardian ad litem is not required to have any special training in child development or methods of child rearing. The lawyer is thus left to fall back on his or her own judgment, which is informed by little more than their own background and what they have learned in the course of their practice.
The question of custody is never permanently settled. Under Virginia’s child custody law, the court retains the power to alter the custody arrangements until the child turns 18 or is emancipated.