Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned

Dale Margolin Cecka *

The appellate courts of this Commonwealth are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error.

These words of Judge Humphreys, denying a 2016 child custody appeal, are cogent. Yet four months later, in another appeal, Judge Humphreys joined a unanimous decision overturning a common provision in a custody order. In Bonhotel v. Watts, the Court of Appeals of Virginia held that judges cannot delegate judicial decision making power in child custody cases to outside professionals. This sounds obvious, but such delegation is actually ordered all the time. In final orders, Virginia’s trial court judges frequently give discretion to guardians ad litem (“GALs”), as well as therapeutic counselors, to determine issues such as the frequency, length, and substance of parent-child visitation.

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* Clinical Professor of Law and Director of the Jeanette Family Law Clinic, University of Richmond School of Law, Richmond, Virginia. J.D., 2004, Columbia Law School; B.A., 1999, Stanford University. The author would like to thank Mark Branca and Jenni Lyman for their invaluable research assistance. The author has practiced domestic relations and child welfare law for over fourteen years in trial courts in Virginia and New York. Upon graduation, Professor Cecka was selected as a Skadden Fellow at the Legal Aid Society, representing children in foster care in all five boroughs of New York City, and later, as a Teaching Fellow and the Director of the Child Advocacy Clinic at St. John’s School of Law which serves Queens and Long Island. In 2008, Professor Cecka was appointed by the University of Richmond School of Law to create and launch the Family Law Clinic, which was the first, and still only, pro bono service for litigants in central Virginia on contested domestic relations matters. Under Professor Cecka’s supervision, third-year law students try cases in the Juvenile and Domestic Relations Courts and the Circuit Courts of Richmond, Henrico, Chesterfield, Petersburg, and Hanover. Professor Cecka is also Of Counsel in domestic relations matters to the law firm Winslow and McCurry in Chesterfield, Virginia, and has made appearances in Clarke and York Counties in that capacity.