Juvenile Law

The information in this section is intended for educational purposes only. We do not offer legal advice or opinions without meeting our clients face to face. Please consult your local Domestic Relations attorney for such advise or come meet with us in person.

In this area of law, we represent the child or one of the child’s parents in any one of a number of different matters. We are often appointed by the court to act as Guardian ad litem for the child. The juvenile’s confidentiality is protected and a judge, not a jury, hears all cases. Any decision by a Juvenile & Domestic Relations District judge may be appealed within 10 days of the court’s decision.

Custody & Visitation
Juvenile Criminal Charges
Truancy
Child Abuse and Neglect

CUSTODY AND VISITATION
As a society, we believe that children need both a mother and a father to raise them. Psychologists insist that a child’s mental health will be impacted if one of their parents is absent. They also insist that a child must bond to his or her mother and father closely during the first two years of life. But, in a Custody and Visitation case, the parents are no longer together and the Court has to decide which parent or parents will have Custody of the child and which will have Visitation and how long and on what days the child will visit that parent. The best resolution in a Custody and Visitation case is that reached by the parents themselves.

Co-Parenting
The first thing you have to do as a parent involved in a custody and visitation case is to separate your feelings about the other parent from those of your child. Your child needs both of his or her parents and needs to feel that they both love him or her. Thus, you will now be involved in a new relationship with the other parent. It is called “co-parenting” and means a cooperative, polite, consistent raising of the child through frequent communication and reasonable resolution of problems. You will have to STOP making nasty comments (or true but ugly comments) about the other parent in front of your child. You will have to encourage your child’s relationship with the other parent. You will have to do all these things for your child’s security and happiness.

What is Custody? What is Visitation?
Custody of a child involves 1) who will make decisions concerning the child and 2) who will the child live with. Visitation involves setting time aside for the other parent to spend time with the child. Financial support of the child is a separate matter handled in a separate hearing.
What types of custody are there?
1. Sole Custody - § 20.124.1 – one person is responsible for caring nurturing and disciplining the child (physical custody) and has primary authority to make decisions concerning the child (legal custody).
2. Joint custody - § 20-124.1
a. Both parents are responsible for caring, nurturing and disciplining the child and have joint authority to make decisions, even though child’s primary residence may be with one parent
b. Both parents share physical and custodial care of the child;
c. Any combination of joint legal and joint physical custody that the court deems to be in the best interest of the child
3. Shared custody – in child support context – each parent has physical custody of the child for more than 110 days of the year
4. Split custody – each parent has primary or sole custody of one or more of the children
5. Divided custody – child lives alternately with one parent and then the other for specified periods of time with each parent having sole custodial rights while the child resides with him or her.

Regardless of who gets custody, both parents are permitted access to the child’s academic, medical, hospital or other health records. Va. Code § 20-124.6.
And, both parents have a legal responsibility to keep each other aware of all important matters regarding the child’s health, education and general welfare as well as the parent’s current address. Va. Code §20.124-5.

How are the many issues of custody and visitation decided?
1. Agreement by the parents;
2. Mediated agreement by the parents or with the help of a Guardian ad litem, or;
3. Decision by the judge.

The parents agree to most custody and visitation. They agree on whom the child will live with and when the child will spend time with the other parent, who will provide transportation, who will provide support, etc.

When parents cannot agree and one parent files a petition for determination of custody and visitation by the court, there is still an opportunity for the parents to come to an agreement. Mediation is available at little or no cost. Mediation involves an informal meeting between the parties with an impartial, trained mediator who facilitates the conversation in an effort to come to an agreement. If a parent is not happy with mediation, the parent is not bound by that process and can continue with the court hearing the case.

Often in a custody and visitation case, a Guardian ad litem (GAL) is appointed by the court to advise the judge what is in the best interests of the child. The GAL performs an investigation, interviewing the child and the parents as well as others familiar with the child and reports to the court. The GAL is often able to explain custody and visitation and come up with a reasonable plan that both parents can accept.

Courts are full of custody and visitation cases and judges generally do not like these cases. It is hard to decide who should raise a child and the stakes are high. In order to accommodate the large volume of cases, judges routinely limit the amount of time for a case to two hours – one hour for Mom and one hour for Dad. This is a very brief time in which to present all of the evidence.

In determining custody and visitation, the judge must use a legal standard “the best interests of the child.” To determine the “best interests of the child,” the judge must consider the following factors: (Va. Code § 20-124.3)
1. The age and physical and mental condition of the child including the child’s developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship between the child and each parent – positive involvement in the child’s life and ability of parent to accurately assess and meet the emotional, intellectual, and physical needs of the child;
4. The needs of the child – important relationships (siblings, peers, extended family members);
5. The role each parent has played and will play in the future in upbringing and care of the child;
6. Steps taken by parent to encourage child’s contact and relationship with the other parent (has parent unreasonably denied access or visitation?);
7. Ability and interest of parent in maintaining a close and continuing relationship with the child and ability of parent to cooperate with other parent to resolve disputes;
8. Reasonable preference of child (if teenager);
9. History of family abuse – Va. Code §16.1-228;
10. Such other factors as the court considers necessary.

What other factors do most judges consider necessary and how important are these other factors? Each judge is unique, but there are some general guidelines:

The parent with current physical custody of the child has an advantage – tie goes to this person. Court wants to see that the custodial parent is reasonable, responsible, dependable and protective of the child and providing a stable home environment. A fit parent is given preference over any other person. There are certain facts, which usually destroy a parent’s chances for custody:

NO
DUI with child in the car
Voluntarily relinquished custody of the child in the past
Convicted of domestic abuse
Refused to allow visitation
Routinely says bad things about other parent in front of child
Living with member of opposite sex, not married
Does not cooperate or get along with the other parent – poisoning the relationship of the other parent with the child
Parent suicidal

Some facts may be negative but will not necessarily destroy chances for custody:

MAYBE
Frequent change of address
Severe financial problems
Alcoholism or drug use – if in rehabilitation for a significant period of time
Lesbianism, homosexuality

Some facts usually give custody to one parent or other person with a legitimate interest:

YES
Breastfeeding mother
Grandparent where parents are in jail or unfit
Parent who can keep siblings together
Protective order against other parent
Other parent is severely mentally or physically ill

The judge may consider many other factors and each judge has his or her own approach. Some judges seem to believe that the mother should always have custody of the children. Others feel that emotional abuse is so detrimental that the other parent should have the children. Other judges place great weight on other particular factors.

When a parent has lost custody of the child, what can he or she do?
In Virginia, the judge of the Juvenile & Domestic Relations District Court makes the initial decision concerning custody and visitation. Any decision by that judge may be appealed within 10 days to the Circuit court. However, judges in Circuit Court are legally required to place a lot of weight on the determination by the Juvenile & Domestic Relations judge and it is hard to obtain a different decision in the Circuit Court.

So, how are changes in custody made?
The unhappy parent may file for custody and visitation again in J&D court, but courts often will not accept another petition for 6 months or a year. When the parent files, he or she must prove that there has been a material change in circumstances and that a change in custody would be in the best interests of the child. Most likely, the same judge will hear the case.

VISITATION
If a parent does not have custody, how can that parent build up a close relationship with the child? The parent can spend scheduled time with the child called “visitation.” There are many different time periods to consider in structuring visitation:
1. During the week;
2. Daytime v. overnight;
3. Weekend;
4. Vacations;
5. Holidays and birthdays;
6. Father’s Day, Mother’s Day;
7. Soccer games, school plays, music lessons, lunch at school, field trips, etc.

Factors that need to be considered in setting a visitation schedule are the age of the child, the distance between Mom and Dad, the parents’ work schedules, the child’s activities and friends, the non-custodial parent’s house, living partners, rules, ability to consistently parent the child and habits.

Either, the parents or the court will set up the visitation schedule. The court will expect both parents to be reasonable in carrying out the schedule, and in making alterations when the child would be benefited (vacation runs longer, sibling’s birthday is on the wrong weekend, etc.)

However, there are frequently a lot of problems with visitation. Parents disagree on how the child should be fed (well-rounded meals v. fast food), how late the other parent was in picking up or dropping off the child, the child’s language after a visit, the non-custodial parent’s failure to return the child’s clothes or give the child a bath or take the child to the doctor or make the child take his medicine, etc.

Some of these problems involve a lack of simple courtesy and some involve a clash in parenting rules. It is just as important for these areas to run smoothly as it is to set the schedule. In other words, both parents should ALWAYS be on time for pick up and drop off of the child. Both parents should ALWAYS carry a cell phone turned on so that the other parent can explain if he or she is going to be unavoidably late. Both parents should agree on food, clothing, language around the child, smoking, etc. and both should carefully observe the same rules and make sure that everyone the child is exposed to also observes them.

What about a father who has not had contact with the child for years? Is there any hope for him to obtain visitation? First, the father must pay any child support arrearages. Then, he must prove to the judge that he really wants to have a consistent and continuing relationship with the child. This may involve starting slowly with a few hours of visitation, never missing a visitation, not fighting with Mom, etc.
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JUVENILE CRIMINAL CHARGES
Children up to age 18 have traditionally been given more lenient sentences than adults on the basis that they are less in control of what they do and more amenable to rehabilitation. This leniency, however, is eroding and children are being given harsher sentences and being tried as adults for serious crimes. Many activities that were considered innocent adolescent behavior such as making bombs in the backyard or telling friends that they wish Ms. Nasty Teacher would die, are now taken very seriously and carry significant punishment as well as therapy and constant monitoring. A juvenile can be suspended from school and charged with a criminal charge for the same event.

Taking A Juvenile Into Custody
A juvenile may be taken into custody if he or she commits a crime in a police officer’s presence or if the police officer believes that the child committed a felony, (a crime punishable by death or imprisonment for more than one year.) A juvenile may also be taken into custody if a judge, intake officer, or clerk (when authorized by the judge) issues a detention order requiring an arresting officer to take a juvenile into custody. The child will be brought before an intake officer who may release the child on conditions or hold the child in detention. If the child is held in detention, there must be a detention hearing before a judge within 72 hours of the taking of the juvenile into custody. For a juvenile charged with a criminal offense, there will be a Detention Hearing, an Adjudication Hearing and a Disposition Hearing. At the Detention Hearing, the judge will decide whether or not the child can be released until trial. At the Adjudication Hearing, the judge will decide whether or not the child is guilty of the charges. If the child is found guilty, the judge will set a Disposition Hearing far enough ahead to obtain additional information about the child. At the Disposition Hearing, the judge will decide what punishment and required services the child will receive.

Detention Hearing
The detention hearing is a hearing to determine whether detention of the juvenile should be continued. There are a number of factors that go into that decision, such as whether the juvenile is a threat to himself or the community, whether there is a parent or other suitable person able and willing to supervise and take care of the juvenile, or whether the juvenile’s life or health would be placed in danger if he or she was released. The juvenile can be further held in a secure place only if he or she is charged with being a delinquent child.

If the judge decides that a juvenile is to be released from detention, the judge also decides who shall have custody of the child and who shall be responsible for the juvenile until trial. Also, the judge decides whether or not the juvenile is to be restricted or be required to do certain things until the trial. The judge may also require a bail bond to be posted.

Prior notice of the detention hearing must be given to the juvenile’s parent or guardian, and to the juvenile if he or she is over 12 years of age. The juvenile has the right to be represented by a lawyer at the detention hearing, the right to remain silent concerning the accusation of delinquency and to be informed of the contents of the petition.

While the juvenile is in a detention home or shelter placement, parents or guardians wishing to visit may do so only during permitted visiting hours, which are usually restricted. Parents or guardians should find out in advance of a visit the hours when visitation is permitted.

Adjudication Hearing
At the Adjudication Hearing, which is like a trial, the judge will hear evidence about the crime that has been charged. The child, his or her parents, witnesses, the child’s attorney and the prosecutor will be present along with the clerk, the court security officer and the judge. This hearing will take place in a confidential room not open to the public or anyone else who is not associated with the case.

After the evidence has all been heard, the attorneys will present their arguments and legal references and the judge will decide whether the child is guilty of the charges and whether the child may be released until sentencing or remain in custody. The judge will order a Social History or Pre-Sentence Report to provide more information about the child, the home, previous problems, etc. Usually the child is placed on supervised probation, if released. There will be a number of conditions that the child must meet. For example, the child is usually instructed to go to school. That means that the child must go to school and go to all of his classes, on time. If the child is suspended, that is a violation of his probation. It is very important for the child and the family to work closely with the probation officer and to do exactly what the probation officer says. The parents must report any violations by the child or may be held in contempt of court.

Disposition Hearing
At the Disposition Hearing, the judge will consider the reports and the recommendation of the probation officer. The judge has a wide range of possible alternatives. If the juvenile is placed on probation under the supervision of a probation counselor, the juvenile and the juvenile's parents must cooperate with the probation counselor and obey the conditions of probation made by the court at the time of disposition. The juvenile's parents may also be ordered by the court to participate in counseling programs or to receive other treatment that the court may prescribe. Parents or guardians violating conditions contained in the court order may be subject to contempt of court charges; probation violations by a juvenile may result in a more severe disposition. A jail term may be imposed only if a juvenile is 14 years old or over, is convicted of committing a felony, and if the interests of the community require such restraint as determined by the judge.

Destruction of Court Records
Records of delinquent juveniles (except for felony and traffic convictions) and CHINS juveniles must be destroyed after the juvenile has reached age 19, or after 5 years have passed since the person's last Juvenile and Domestic Relations District Court hearing: whichever event occurs later. In the case of traffic cases, the record is destroyed after the year in which the juvenile reaches age 29 unless the juvenile later commits a felony after becoming an adult. The records of a proceeding where a juvenile has committed a felony are not destroyed. If a juvenile is found not guilty of a misdemeanor offense, he or she may ask in writing for early destruction of the records.
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TRUANCY
By law, children must attend school all day, every day that school is in session. Children also must be in their seats, ready to work, for each class. However, if children are miserable at school, they will find ways to skip. The child may be failing, be bullied or teased, be so far behind that he cannot understand the teacher or be unable to accommodate to block scheduling. The child may have a personality clash with the teacher or administrator, be falling asleep in classes or may want to hang out with his friends who have been suspended.

Some students become “sick” frequently or refuse to get out of bed in the morning. Others, simply sneak out of the school and disappear. Some take the bus to school, go to a class they like and then hide during a class they do not like. Some have short attention spans and need frequent breaks. If the school schedule does not accommodate their needs, they may be disruptive in class and be suspended. All of these strategies are effective at getting out of school.

Most schools will try to contact the child’s parents to let them know that the child has been skipping school. However, school personnel are busy and they usually will not go to great lengths to follow up on tardy or truant children. A smart child will be sure to erase any messages from the school on the answering machine as soon as they get home. This game may continue for a number of months but eventually, the school will file a truancy petition against the child, a contributing to the delinquency of a minor petition against the parents or both. By this time, there are usually a long list of unexcused absences and tardies.

Courts have a very low tolerance for truancy. Judges will not be sympathetic to parents who were working a late shift and didn’t get up to get the child to school on time. Neither will they understand the parent who cannot get the child out of bed. Judges will not coddle a disabled child, a bullied or teased child, a fat child, or a failing child. The court will order the child to go to school. If the child is late one more time, or has any further unexcused absences, the court will order the child into detention. This cycle will continue until the child gets the message. Clearly, the child must go to school, but the underlying problem needs to be addressed as well as the truancy. It will be up to the parents to deal with the underlying problem.
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CHILD ABUSE AND NEGLECT
This type of action will usually start with a complaint to the Division of Social Services (DSS) that a very young child is wandering around outside unattended, or that children have been abandoned by their parents, or that a child has cigarette burns on his arm, etc. Courts need to balance acting quickly to protect the child with giving the parents enough time to present their defense in case the allegations are not founded.

DSS will file the petition alleging abuse or neglect and the court will hold an emergency removal hearing. If the court finds that the child is in imminent danger, the child will be removed and the court will schedule a preliminary removal hearing within 5 business days. The child will be placed with an appropriate family member, if available, under the supervision of the local Department of Social Services. DSS will make reasonable efforts to prevent removal of the child. In other words, if there are medical, educational, psychiatric, homemaking or similar services that will solve the problem, DSS will provide these services so that the child is not removed from the family.

At the preliminary removal hearing, the court will decide whether the allegations of abuse and neglect have been proven by a preponderance of the evidence. (More than 50% likely). If the parties object to a finding at that time, the court will schedule an adjudicatory hearing (trial) within 30 days of the initial removal hearing. If the court finds abuse and neglect, a dispositional hearing will be held within 75 days of the removal hearing.

In addition to the removal petition, any person may file a motion for a preliminary protective order to protect the child from people who have harmed him. The court may issue an ex parte order (only one side present in court) but must also schedule an adversary hearing (with all parties affected) within 5 business days. If the parties object to the court reaching a finding at this hearing, the court will schedule an adjudicatory hearing within 30 days of the initial preliminary protective order hearing. A dispositional hearing must be held within 75 days.

The child may be placed in the custody of DSS and a Foster Care Service Plan will be developed which will set a goal for the custody and care of the child to be achieved within one year and specific responsibilities for the parents to complete. If the parents are responsive, the child may be returned to the family. If the parents are not responsive, the parental rights may be terminated and the child placed in foster care leading to adoption.
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