The following changes to the Virginia code statute relating to divorce have been proposed by Ron Grignol rgrignol@hotmail.com of FFV.  The proposed changes are highlighted in bold type.  Send Ron an email.

There is a discussion of the proposed changes at the end entitled:

Family Law Reform for True Children’s Best Interests (Discussion)

-91. Grounds for divorce from bond of matrimony; contents of decree.

A. A divorce from the bond of matrimony may be decreed:

(1) For adultery; or for sodomy or buggery committed outside the marriage;

(2) [Repealed.]

(3) Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his or her conjugal rights);

(4), (5) [Repealed.]

(6) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other party or where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or was negligent toward the parties minor children, such divorce may be decreed to the innocent party after a period of one year from the date of such act; or

(7), (8) [Repealed.]

(9) (a) …

§ 20-103. (Effective until July 1, 2003) Court may make orders pending suit for divorce, custody or visitation, etc.

C. In cases other than those for divorce in which a custody or visitation arrangement for a minor child is sought, the court may enter an order providing for custody, visitation or maintenance pending the suit as provided in subsection A. The order shall be directed to either parent or any person with a legitimate interest who is a party to the suit. The defendant in divorce suits shall be awarded no less then 7 out of 14 of the overnights in any two week period unless the defendant has committed either 1, 3, 6, or 6a of 20-91. If the defendant in divorce suits has committed either 1, 3, 6, or 6a the plaintiff in divorce suits shall be awarded no less then 7 out of 14 of the overnights in any two week period unless the plaintiff has also committed either 1, 3, 6 or 6a of 20-91.

20-124.2. Court-ordered custody and visitation arrangements.

B. The defendant shall be awarded no less then 7 out of 14 of the overnights in any two week period and either joint or sole legal custody unless the defendant has committed either 1, 3, 6, or 6a of 20-91. If the defendant has committed either 1, 3, 6 or 6a of 20-91the plaintiff shall be awarded no less then 7 out of 14 of the overnights in any two week period and either joint or sole legal custody unless the plaintiff has also committed either 1, 3, 6 or 6a of 20-91. In addition to the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.

Children in married families are healthier, perform better in school, live in poverty less frequently and are involved in crime or other destructive behaviors less often. This fact is now accepted by almost everyone but until recently little action has been taken to correct this problem. Today, several private programs actively seek to intervene to save troubled marriages and some states are introducing marriage education programs, removing financial disincentives to marry and setting goals to reduce divorce. The one thing neither private organizations nor state governments are addressing is reforming divorce laws. The most important divorce laws needing reform are the child custody laws.

What is not well understood is how our family law system actively encourages divorce and conflict between parents, and after divorce minimizes the role of one of the parents in their children’s lives. Many times the parent with minimal access is in fact the more responsible parent and the parent better suited to raise children. In practice the family law system provides incentives for mothers to turn solvable marriage problems into divorce, and makes men reluctant to marry because they know their future children can be taken away without even the pretense of right and wrong.

Child custody decisions are made by the Best Interests of the Child Standard. The standard is written in extremely general language and gives judges no discernable limits or objective guidelines. Despite the positive sounding title and language of the standard, what it really comes down to is complete judicial discretion with no accountability. The wide open standard is subject to human error, myths, political correctness and at its worst corruption. Limited judicial discretion is necessary for adjudicating individual cases, but this discretion needs be contained inside some reasonable boundaries.

Just as communism failed to achieve promised prosperity because it failed to see that freedom creates prosperity, so the best interests of the child standard fails to achieve what is best for our children, because it fails to see that responsible parents are what is truly in the best interests of our children. The actions and behavior of the parent reveal the character and the level of responsibility of each parent. The more responsible parent is better suited to the demands of being a single parent and is better able to raise children to be responsible adolescents and adults. Being a responsible parent also means keeping the marriage intact, because marriage and the easy access of children to both parents is one of the most important things a parent can do for their children. It is in the best interest of children to give the more responsible parent an advantage in time and decision-making in the event of divorce.

Per the proposed bill, fifty percent of child custody time will be awarded to the more responsible parent. The other 50% of custody time will be divided in ways the judge determines is best for each individual case. If both parents have been irresponsible than neither parent receives the minimum 50% custody time, and all custody time becomes subject to judicial discretion.

Proposed bill: If the plaintiff can prove irresponsible parental behavior he or she will be awarded a minimum child custody of 50% of the overnights in a calendar year and either joint or sole legal custody. If the plaintiff cannot prove irresponsible parental behavior the defendant will be awarded a minimum of 50% of the overnights with their children in every calendar year and either joint or sole legal custody. If both the defendant and plaintiff have committed irresponsible parental behavior, neither parent is awarded the minimum 50% time with their children. Any parenting plan agreed to by both parents takes precedent over the dictates of this bill.

The plaintiff is the parent filing for divorce and the defendant is the parent who did not seek divorce.

Irresponsible parental behaviors for the purposes of this bill are:

1. Adultery
2. Felony activities
3. Abuse of spouse or minor children, cruelty toward souse or minor children or neglect of minor children
4. Abandonment
5. Alcohol and drug abuse including prescription drug abuse.

It is important to note that only one parent is awarded the minimum 50% custody time because, in divorce at least one parent has been irresponsible as defined by this bill. If both parents have been irresponsible then neither parent is awarded the minimum50% custody time and the judge is given complete discretion.

These irresponsible parental behaviors (although not called this) are not new. For example with only minor modifications these behaviors are in the Virginia code in the grounds for divorce subsection. These behaviors put the marriage, the other spouse or the children at risk.

Less obvious behaviors that rise to the standard of irresponsible parental behavior include gambling away money or not looking for work such that food or shelter for the children is jeopardized, and invoking fear in a spouse or children through threatening actions. These behaviors would be considered cruel or neglectful or both. Care has to be taken however to look for true negligence or cruelty. For example restraining orders cannot be used to determine irresponsible behavior because they are usually granted on the word of one parent without any supporting evidence. If the standard in practice were too loose further defining legislation would be required.

Less serious matters that would not rise to the standard of irresponsible parental behavior include irreconcilable differences, growing apart, not feeling appreciated or just being unhappy. These issues may be personally important, and issues many if not most couples have to work on, but filing for divorce for these reasons, are more in the short-term best interests of one parent than in the best interests of the child.

Children’s preference is not considered a factor in determining parental responsibility because children do not know what is in their best long-term interests and their preferences are subject to manipulation by parents, lawyers and child therapists which is certainly not in their interests. A parent’s occupation including military service with deployments, age or physical health and the child’s age is not relevant for the 50% of child custody decided by parental responsibility. The more responsible parent is more mature and more likely to sacrifice for his or her child. The more responsible parent can better decide the best course of action to care for his or her child; including changing jobs, rearranging work schedules, and involving the other parent.

This proposal is not a shared parenting bill but does not preclude shared parenting. Shared parenting in various forms means keeping both parents involved when parents are not living together. Recent studies showed that shared parenting is a much better option for children than children raised by only one parent. This bill is compatible with all shared parenting laws that have been enacted to date, including the Texas law that requires the judge to put the reasons in writing when he awards either parent less then one third of child custody.

The bill does not apply to never married parents. This bill provides for protection of the parent child relationship in marriage, and thus is an incentive to marry. A case can be made to apply this bill to never married parents especially to parents living together. The debate on applying this bill to never married parents is complex and can wait until after a bill such as the one proposed here is enacted into law.

How this bill should be phased in is a legitimate concern. The bill when enacted into law can apply immediately to new cases. In cases where custody has been previously decided but one parent wants a change of custody, only new evidence since the last custody hearing would be considered. When determining responsible parental behavior the same parental behaviors would be considered with the exception of adultery. The plaintiff would now be the party applying for the change of custody because of changed circumstances.