No civil proceeding in Virginia is more important, unpredictable, arbitrary, prone to judicial mistakes, and more vulnerable to manipulation by the unscrupulous than the determination of child custody. In my opinion, at least. It is the Wild West of family law.
Still, we persevere, because, as a highly esteemed child custody practitioner once put it, “this is God’s work.”
As in all states, the touchstone of any court action under this topic is “the best interests of the children.” It is enshrined in case law and in statutes. Va. Code 20-124.3 defines exactly how a child’s “best interest” is to be determined, and the Virginia Court of Appeals has issued clear instructions to every trial judge in the Commonwealth that all of the “factors” enumerated in that Code Section must be considered every time the issue of custody or visitation of any child is raised in court.
But these “factors,” although sounding high-minded and perhaps even appearing clear enough at first pass, are interpreted very, very differently from courthouse to courthouse, often from judge to judge.
For example, Factor 6 of 20-124.3 instructs your judge to take into account the relative propensity of each parent to “actively promote” a positive relationship with the other parent. This legal mandate, however, is usually disregarded and violated without consequence. In my 20+ years of practice, I have never had a judge take notice of the adverb “actively” preceding the verb “promote” when it comes to custody or visitation. My position is that the General Assembly put that adverb there for a purpose; it didn’t say “begrudgingly" promote, or "passively" promote. Moreover, another Code Section, 20-108, warns that if a parent arbitrarily interferes with or refuses to allow contact between a child and the other parent, then the offending parent can lose custody. And Va. Code 20-124.2(B) tells us that “the court shall assure minor children of frequent and continuing contact with both parents.”
Despite such legal provisions, it is still somewhat of an uphill battle to get judges to give proper weight (in my opinion) to evidence that shows one or the other parent is undermining or sabotaging contact between the child and the other parent. But then again, when it comes to a child's right to have a healthy and sound relationship with both parents, I am somewhat of an extremist.
Most parents who call my office have learned that if no court has yet issued a custody order regarding a child, then either parent can simply take the child and keep him or her from the other parent––until the court catches up with the parent who did the snatching. Possession of a child becomes a free-for-all. I call it the race to the day care. At the first hint of custody dispute, whoever gets there first gets the child, until the court gets around to a hearing. And that might take weeks.
The next thing you know, the parent absconding with the child is filing papers alleging all manner of horrible things about you, and demanding sole custody and supervised visitation. And your child becomes hostage to attempts to extort custody and visitation terms from you. Surely there must be something you can do.
In most jurisdictions you can ask for a temporary order (called “pendente lite" in Virginia) to tide the parties over between now and a final custody trial. But not all jurisdictions will issue such orders. Fairfax County, the largest jurisdiction in the state, will not conduct pendente lite custody hearings, except in rare circumstances. Absconding out of state with your child may or may not qualify, depending on the circumstances and judge. One judge (now retired) once told me, “It’s not an emergency unless you can show me blood or broken bones. For anything else, take a number.”
Most judges, however, will give you a fair hearing on an emergency basis. But always keep in mind, the key element here is whether or not there is a court order in place before your child is taken. If so, then the absconding parent can be guilty of violating Va. Code 18.2-49.1(A), which is a felony.