Do Virginia Family Courts Get It Right?

Posted on Oct 5, 2020 by Katie Carter

Recently, on Facebook, as I mindlessly scrolled (come on, you know you do it, too) I saw a video that showed a child fighting a visitation exchange. The video alleged that the child was resisting going to spend time with her mother, because her mother’s boyfriend abused her. The end of it – the moral, I guess, of the story – was that, in family courts, children aren’t listened to and justice isn’t served.

It got my back up, a little, to be honest.

It’s allegations, for one thing. And the video doesn’t go into any evidence, or testimony, or shed any light on any reasons behind the judge’s decision-making. It doesn’t establish whether there were parenting capacity evaluations done, what the Guardian ad litem discovered in the course of his or her investigation, or anything about therapy – for anyone.

Long story short, we know nothing. And the entire video could be a complete propaganda piece.

Obviously, as a mother, and a family law attorney dedicated to representing women exclusively (which I’ve done for nearly a decade now, by the way), I care deeply about the welfare of children. I certainly have no wish to send any children anywhere into abusive homes. And I understand the sad reality that much of the physical and sexual abuse of children that takes place happens at the hands of a close family member – someone like mom’s boyfriend.

But, come on. There are also a lot of people who’d like to exploit the system for their own gain, aren’t there? Let’s stop and consider some motives and alternative situations for a moment, shall we? (Which, it must be said, has a lot to do with the court’s reticence to just accept someone’s allegations of abuse, but more on that later.)

Dad certainly has some motive here. For one thing, he’d like time with his child, I assume. For another, he may (or may not – I know very little of the facts in this case, except to compare it to others that I have seen) really want to get one over on mom, or to continue to victimize her using the child as a pawn. He may really want to decrease his child support obligation, too.

The child’s testimony really isn’t necessarily probative, either. In this video, a very distressed child was doing all in her power to resist the visitation exchange, and it certainly tugged at my heart strings. There’s no question at all that this child is suffering. Or that she didn’t want to go. But it doesn’t necessarily follow that she doesn’t want to go because of abuse at the hands of mom’s new boyfriend.
Parental alienation is a thing, too. It’s a complicated phenomenon, and it’s best described as a situation in which a child’s parent tries to poison the child against the other parent. It’s usually from making disparaging comments in the child’s presence, or trying to undermine the child’s relationship with the other parent. It’s also sometimes done when a parent creates an inappropriate level of dependence on the child, and makes the child feel responsible for the parent. (It’s one of the sort of, “You can’t leave me, I need you!” arguments.) I’ve seen both things happen, to varying degrees.

Of course, not everything is necessarily done with malicious intent; parents, especially separating or divorcing parents, are humans with needs, too. They may be suffering from mental health issues, or laboring under some kind of addiction. There are all sorts of factors at play here, and many, many reasons that a child would aggressively resist a visitation exchange.

At the same time, too, abuse DOES happen. And, in an abuse case, it can be difficult to get the judge to listen because both sides just have such a strong motive to lie. He said/she said cases are difficult in the best of circumstances; in a custody case, it can turn into a three ring circus, making deciphering the truth a difficult (if not virtually impossible) contention.

All that to say that, in my experience, judges are trying to get it right. They’re trying, with varying degrees of success, to wade through some ridiculously complicated facts. In many cases, they rely on experts – therapists, Guardians ad litem, parenting capacity evaluators, etc – to help them make decisions, because they’re decisions that lawyers and judges aren’t qualified to make on their own. (Hey, we’re not experts in child psychology or development!)

In many cases, we don’t see the child. Or meet the child. I mean, can you imagine how damaging that would be? That’s why Guardians ad litem are involved, most of the time. And it’s not a perfect system, for sure. I’ve heard some horror stories about Guardians ad litem, too, and I know from my own personal experience that some are much, much better than others. But I do believe that most of us are genuinely trying to get things right.

If you’re a mother who is facing parental alienation or a case related to physical, emotional, or sexual abuse (whether alleged against you or that you intend to allege against your child’s father), you need to be prepared. Rights aren’t easily or quickly taken away from parents, especially absent really solid evidence. In many cases, a case will go back to court several times before a major change in custody is made.

Sometimes, you have to be the squeaky wheel. You have to protect your child, if you feel that something untoward is happening. But you may also have to defend yourself against allegations, too, especially if your child’s father is bound and determined to try to make this play out on a public stage.

I do believe that judges – and, for that matter, attorneys and Guardians ad litem – are trying to do their best. No one is trying to ignore a hysterical child. But there’s context. And evidence. And, really, no legal case is anything at all without evidence. If you’re alleging abuse, you’ll need to bring it.

Let’s talk. Whether you’re facing these allegations yourself or making them against your child’s father, the time to prepare is now. It may be a battle (it almost certainly will be, in fact, if it’s anything at all like the kind of case I’m describing here), but what choice do you have?

For more information, request a copy of our custody book, attend our upcoming custody seminar, visit our library of custody resources for Virginia moms, or give our office a call at 757-785-9761