Virginia Lawyer

VaLawyer_Feb2012

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Senior Lawyers Conference by Robert L. Calhoun, Chair The Best Interest of the Child: A Look at the Law of Custody THE LAW INTERSECTS THE LIFE of children in numerous ways. Although both statutory changes and judicial decisions have enlarged the rights of children to assert greater autonomy, the law and custom generally regard children as persons in need of special attention. As senior lawyers, parents, grandparents or otherwise, we all have come into contact with legal issues concerning young persons. One important area is the law of child custody. The majority of disputes over custody are resolved amicably; however, many thousands each year are not, requiring the inter- vention of the courts and allied court services agencies. The present statute on the custody of minor children, now set out in code sections 20-124 —20-124.6, was enacted in 1994 after an extensive study by the General Assembly's Youth Services Commission. In addition to several members of the General Assembly (including the author), the commission study had the benefit of the views of several sitting judges of the Juvenile and Domestic Relations District Courts, several child advocacy advocates, and academic experts including the late Robert E. Shepard Jr. of the University of Richmond Law School. Except for minor changes, section 20-124 Et. seq. has remained as enacted. While preserving the historic stan- dard that custody decisions are to be "made in the best interests of the child," section 20-124.2 restated and enlarged the considerations that a www.vsb.org court should take into account in determining that interest. Most impor- tantly, by stating that "there shall be no presumption or inference of law in favor of either [parent]," it did away with the long-standing "tender years" doctrine that historically had favored the mother in custody disputes, further stated policy that encouraged "frequent and continuing contact" with both par- ents where appropriate and to jointly share in the responsibilities for the rearing of their children. The law also provided for the first time authority in the courts to award temporary custody pendente lite and that custody decisions should be made independently of property or other issues and encour- aged mediation of custody difference. The 1994 act applied its terms to all custody issues regardless of the parental marital status or gender pref- erence. Although controversial at the time, these concerns have faded into the background. Two questions were not resolved. First, an effort was made to drop the term "custody" and replace it with some more child-parent friendly term. While there has been no effort to revisit this issue, it is hard not to sympathize with a comment made by one of the commission members who said: "By talking about custody of the child, it is like the child is an item of property to be possessed and negoti- ated over such as a piece of property." The second, replacing the discre- tion of the court as to proper custodial placement (sole, joint or shared cus- tody) with a presumption that joint custody should be awarded in the absence of an affirmative showing that such joint custody would not be in the best interests of the child, has proved more contentious and enduring. Most judges and attorneys with whom I have discussed this question say joint cus- tody is the favored option, but in their view, it is not possible in many cases. Some cases such as a pattern of abuse or neglect are obvious. Others involve a complex mixture of considerations. Since 1994, bills have been introduced in the General Assembly to establish a presumption of shared or joint cus- tody. The primary impetus for such proposals appears to come from con- cerns by a non-custodial parent. Common concerns involve child sup- port or visitation. Because these con- cerns are more commonly raised by fathers, such bills in the argot of the General Assembly are referred to as "fathers-rights" bills. Two such bills have been intro- duced in the 2012 session. The first, HB 606 patroned by Delegate James M. LeMunyon, establishes a presumption of joint legal custody and, to the extent feasible, joint physical custody absent evidence that such custody is not in the best interest of the child. The second bill, HB 84, patroned by Delegate David B. Albo, is similar except that it applies only to cases arising under sec- tion 20-91(9) (no-fault divorces) and mandates that no parent shall have physical custody of less than two-fifths of a child's time. As of this writing, nei- ther of these bills has been the subject of committee consideration. Vol. 60 | February 2012 | VIRGINIA LAWYER 59

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