- Report Published -
|The Study of Model Child Custody and Visitation Schedules|
|Virginia Commission on Youth|
|SJR 243 (Regular Session, 1993)|
|During the 1993 General Assembly Session, four bills were introduced in both the House and Senate which sought to alter the legal processes and parameters along which child custody and visitation decisions are made in Virginia. These legislative proposals, which included the codification of a mandatory visitation schedule, creation of a presumption of joint custody, and the expansion of factors considered under the "best interest" standard, did not pass. However, their introduction and the debate among the legislators substantiated 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 rise in the number of divorces involving children (there has been a 60% increase in the number of custody and visitation cases decided at the District Court level since 1988), 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 statute regarding child custody and visitation.|
As the mandate was to study model child custody guidelines and visitation schedules, this study was less dependent upon the analysis of data and relied instead upon interaction, discussion, and debate among professionals and constituency groups involved in custody and visitation decisions. A review of clinical studies measuring the impact of divorce on families and analysis of national legal trends in child custody was conducted. A work group composed of representatives of the legal and therapeutic communities, circuit and district court judges, mediators, and child advocacy constituency groups was established. Individuals serving on the work group were selected for their professional expertise, as well as their ability to represent specific constituency groups. For a listing of the work group membership, please refer to Appendix B. Through on-going debate and consensus-building, a model for determining child custody and visitation schedules was developed. The current system was then compared to the model. Finally, recommendations were developed with the goal of approximating current practice more closely to the model.
The resulting model articulates guiding principles for all custody and visitation decisions and describes the processes by which these decisions should be made. The model reflects an attempt by the group to balance parents' needs and fears with the primary concern of custody and visitation matters -- the needs of the child.
The work group developed guiding principles for model child custody and visitation schedules. The process should:
• Be child-focused
• Promote frequent and continuing contact with each parent
• View the parent/child relationship as primary
• Acknowledge the legitimate role of the court
• Preserve the dignity of all parties
• Help families preserve their resources, i.e., time, good will, emotional health and finances
• Acknowledge that children deserve a healthy, non-abusive family environment at all times.
In developing the model, the work group found that there are no easy answers. The recognition of the need for judicial discretion in determining child custody cases conflicted with the desire to expand and clarify the factors used to determine best interests of the child. The desire to erase stigmatizing language such as "non-custodial parent'' was mitigated by the importance of maintaining the case law which provides guidance and insuring that levels of child support were not jeopardized. Expanded use of mediated settlements rather than adversarial proceedings in child custody cases may not adequately protect against the consequences of domestic violence. Attempts to revise the Code in terms of "parenting arrangements" resulted in language which appeared to minimize the importance of the child. The desire to support increased contact with both parents carries with it the potential of minimizing the child's needs.
The group affirmed that Code revisions must be coupled with standardization of child custody evaluations and training for the bench and bar on issues related to child-focused decision-making in custody and visitation cases.
The result of the work group's long deliberation is a multi-faceted approach in which professional training, establishment of professional standards, public education efforts and statutory revisions are required in order to more closely approximate the guiding principles of model child custody decisions and visitation schedules.
On the basis of its findings, the Commission on Youth offers the following recommendations in the areas of Legislative Revisions, Specialized Training and Child Custody Evaluations.
Revise § 20.107.2 and other relevant sections of the Code of Virginia pertaining to child custody and visitation to effect the following:
• Guidance to the court in determining all custody and visitation disputes, regardless of the marital status of the parties;
• Requirement that custody and visitation decisions be made prior to other decisions arising out of divorce and/or separation proceedings (excepting those related to protective orders and pende lite hearings);
• Promotion of frequent and continuing contact with each child and each parent when appropriate;
• Support for mediation, as opposed to litigation, as a means to settle custody disputes;
• Expansion of factors defining best interest of the child;
The Supreme Court should provide judicial training on the psychological development of the child, post-divorce adjustment and adaptation, as well as other issues that would better enable the bench to assess the factors related to a child's "best interest'' in custody cases. In addition, judges should receive training in creating specific orders for child visitation which promote frequent and predictable contact for each child with each parent.
The Family Law Section of the Virginia State Bar should provide training on the psychological development of the child, post-divorce adjustment and adaptation, as well as other issues that would better enable the bench to assess the factors related to a child's "best interest" in custody and visitation cases. In addition, attorneys should receive training in creating specific arrangements for child visitation which promote frequent and predictable contact for each child with each parent.
Child Custody Evaluations
The Boards of the Department of Youth and Family Services and Social Services should, by January 1, 1995, jointly establish the guidelines for child custody evaluations which are conducted by their employees. These guidelines should address both the scope of the inquiry and suggested staff qualifications. Both agencies will be responsible for making their final work products available to judges, pro se litigants, and members of the bar across the state.
The Health Regulatory Board should provide oversight to the Boards of Psychology, Medicine and Social Work as they develop minimum standards for child custody evaluators within each discipline, with the goal of gathering information relevant to custody decisions. Each Board should make this outline of their standards available to judges, pro se litigants and the bar.
The Departments of Social Services and Youth and Family Services and relevant Boards under the Health Regulatory Board should share information with each other as they develop minimum standards for child custody evaluators for each discipline, with the goal of identifying relevant information.
Support the research pilot of Courts using the testimony of only one evaluator available to both parties in disputed custody cases.