Tuesday, January 11, 2011

Virginia’s child custody landscape may be changing

If two bills introduced in the 2011 General Assembly session are passed major substantive and procedural changes are in store for future child custody lawsuits.

Del. Scott Surovell (D - Fairfax) has proposed a common sense procedural fix to a problem most people and (non domestic relations) attorneys do not know about in child custody cases.  Under Virginia law, child custody, vitiation, and child support are considered separate causes of action for which one can independently sue.  For a reason I have been yet been unable to determine Juvenile and Domestic Relations Courts make litigants, including unrepresented people (pro se litigants), file separate petitions for custody, for visitation, and for child support.  The end result is three cases that are inevitably tried at the same time, with the same parties with the same judge.  The administrative confusion and additional paperwork caused by the tracking of multiple cases causes frustration for litigants and counsel alike.

HB1807 would solve this problem by allowing parties to file all their cases within one case number with one petition.  The complexity of filing new cases will not be reduced to a minimal level but at least will allow the courts to be more accessible to people who unfortunately will have no choice but to navigate its system.

More importantly a dramatic shift to the method of designating physical custody may be in force as soon as July 2011. 
Currently when a custody matter goes before a judge, the judge is required to conduct a best interests of the child test.  The test actually often results in primary physical custody being left with one parent, and a standard visitation schedule for the non-custodial parent.  If something dramatic happens to one parent or the child, the situation might be reversed in a future custody and visitation hearing.  Fair or not, Virginia’s judges, lawyers , and guardians have become accustomed to this system of picking a successful and unsuccessful litigant based on the best interests of the child.

 Del. Robert Tata (R. - Va. Beach) has proposed a complete rewrite of the standard for awarding custody in HB1787.  Under HB1787 the judge in a custody case must presume that the best interests of the child will be most successfully met by awarding parents physical custody shared equally between the parties to the extent feasible.  The judge would only be able to deviate from this standard upon a direct showing that equally shared custody is not in the best interests of the child.  

This takes away some of the discretion currently given to judges.  More importantly it likely will reduce some of the tension arising from child custody situations as most parties will enter the litigation presuming the same outcome absent extreme circumstances.  Actually going to trial rather than settling will be less palatable for most litigants.  

There are detriments to this approach.  Judges, especially Circuit Court judges will be reluctant to deviate from the standard due to concern that the judge might be overturned on appeal to the Court of Appeals.  More importantly, most school age children need some measure of stability during the school week.  Bouncing from house to house will be difficult for most 5-18 year olds unless the parents live in very close proximity.

Predictions: HB1807 will likely pass.  Del. Surovell practices domestic relations law, and has likely encountered numerous headaches with the multiple petition process.  Personally this law is long overdue.  It will  likely pass, and not a minute too soon.

 HB1787 seems to be the kind of legislation requested by a constituent after an unfavorable custody hearing.  Overall it represent s a clearer standard for custody and in that manner it is a better standard.  It is unlikely there is strong support for such a radical change.  This bill will begin and end in committee.


  1. What is the update on this bill being passed? My husband is an upstading citizen holding a position with his city for 20yrts, we live 7 doors away from his ex-wife and daughter and we have Wednesday's and every other weekend simply because my step-daughter's Mother is bitter, angry and cannot move on. Laws need to change, for the sake of the children...the Laws NEED to change ASAP!

  2. The Bill was left to die on the House Courts of Justice Committee.