HD24 - Study of Joint Custody and Visitation


Executive Summary:
During the 1998 General Assembly Session, nine bills were introduced in both the House and Senate which sought to alter the legal processes and parameters within which child custody and visitation decisions are made in Virginia. These legislative proposals addressed the issues of 1) mandatory parent education classes for divorcing parents, 2) the development and submission of parenting plans, 3) establishment of a presumption of joint custody, 4) substitution of the terms used for custody, visitation and the child's best interests, 5) written custody findings, 6) sanctions for denied visitation and 7) change in the threshold of the State's compelling interests in custody/visitation cases. The proposed legislation was carried over in 1998 based on the need to review the processes and options afforded to litigants who come before the court for resolution of child custody and visitation issues. The increase in the number of divorces involving children, the changing demographics of the family, and the increased use of alternative dispute resolution in family matters - all supported the need for review of Virginia's statutes regarding child custody and visitation.

Based on a review of the issues, the following recommendations are offered:

A. PARENT EDUCATION

Parents need to be fully informed of the impact of the separation or divorce on their children and be provided support to appropriately handle this change in their lives. Parent educational seminars provide parents with information which helps decrease destructive conflict and empowers the family to move on with their lives. Ordering attendance to parent education seminars is currently a discretionary option for the Judge.

Recommendation 1

When custody and/or visitation is disputed or contested, attendance to parent education classes should be ordered for parents at the initial court appearance. Either party may seek an exemption for good cause shown.

Recommendation 2

Provide funding to localities to offset the costs of participation in parent education classes by low income and indigent parents. ($308.000)

Recommendation 3

Request the Office of the Executive Secretary of the State Supreme Court to convene a group of experts to develop a model parent education curriculum.

B. PARENTING PLANS

Two states currently require parents to submit plans to the court prior to custody determinations. Routinely, the content of parenting plans address the articulation of the parents' proposal for the child's residential schedule, care arrangements, and how disputes between the parents are to be handled. Jointly submitted parenting plans are not dissimilar to mediated settlements. Rather than create a separate process, amendments to existing Code provisions are suggested to help parents take responsibility in determining custody and visitation arrangements for their child

Recommendation 4

Amend Section 20-124.3(5) the best interest of the child factors to add the articulation of a parent's desires by specifying their plan for the child's residential schedule, care arrangements, and how disputes will be handled in the future.

Recommendation 5

Amend Section 20-124.2 to include that, when parties are referred to mediation in disputed custody/visitation cases, if appropriate, the mediation sessions should address the residential schedule of the child, care arrangements, and how disputes are to be handled in the future.

Recommendation 6

Request the Office of the Executive Secretary of the Supreme Court to develop a checklist which identifies the areas which should be addressed in a parenting plan.

C. WRITTEN FINDINGS

The majority of custody decisions are made in the Juvenile and Domestic Relations Court, which is not a court of record. There is variation across the state with respect to how Judges communicate the basis of their decisions to litigants. Not knowing why or how Judges reach their decisions can be an impediment to parents reaching closure in custody and visitation disputes and may result in relitigation.

Recommendation 7

Amend Section 20-1 24.3 to require that Judges communicate to the parties either orally or in writing the basis of their decision.

D. PRESUMPTION OF JOINT CUSTODY

Alterations to the Code to create a presumption of joint custody are premised on the view that the current system has a bias towards awarding custody to one parent. Unfortunately, no Virginia data currently exists to substantiate the existence of a bias or if presumptive whether joint custody is the appropriate response to the issue.

Recommendation 8

The State should fund a research project which examines the factors which influence custody decisions in Virginia. ($1 00,000)

E. TERMINOLOGY CHANGES

The term "best interest of the child" is used throughout the Code as a standard for child welfare, juvenile justice, and educational issues. Changing the term would create tremendous statutory and case law problems. The terms "custody" and "visitation" may be viewed as pejorative by those involved in disputed cases. "Custody" appears in 597 places in the Code and is often used in the context of issues other than the dissolution of a family relationship, making replacement of the term problematic. The term "visitation" is used 190 times in the Code and applies to a broader group than parents. As parents should not be referred to as visitors in their children's lives, a less derogatory term should be used.

Recommendation 9

The Division of Legislative Services should conduct an analysis of the term "visitation" in the Code and develop suggestions for the adoption of a less pejorative term after examining the experiences of other states and the potential impact of new terminology on case law.

F. DENIED VISITATION

When visitation is denied to the non-custodial parent, the parent is currently able to petition the court for remedy. The court currently has the power to change custody based on the denial of visitation.

Recommendation 10

The court response to denied visitation requires discretion on a case by case review. Do not amend the Code to create a standardized response to the denial of visitation.

Recommendation 11

Request the Executive Secretary of the State Supreme Court to disseminate information to Juvenile and Domestic Relations Court Judges and Circuit Court Judges on: 1) impact of divorce on children, 2) use of mediation in disputed custody and visitation cases, 3) importance of predictable visitation, and 4) parent education classes.

G. STATE'S COMPELLING INTEREST

It is important to empower parents to resolve their own issues without State interference: however, requiring a "compelling State interest" has far-reaching implications and would place many vulnerable children in jeopardy and is therefore not recommended.

Recommendation 12

Do not amend the Code to require a compelling State interest to warrant court intervention in custody and visitation disputes.