Bonhotel v. Watts, Record No. 40-16-3 (Va. Ct. Appeals 2016) (unpublished) discusses two areas of custody law that our judges don’t seem eager to ignore based upon personal observation.
First, under what circumstances can the court tell parties that they need to follow the recommendations of third parties, like parenting coordinators, therapists, etc.? Well, absent an agreement between the parties, the court apparently can’t just mandate that the parties follow the recommendations of third parties. The court can mandate that the parties cooperate with third parties. It can possibly mandate that the parties follow certain recommendations in limited circumstances. But it can’t just rubber stamp the recommendations of third parties. As the court notes, to do so would run afoul of parental liberty interests, let alone the unmentioned fact that to do so would effectively grant some of the powers exclusively vested in our appointed judges in the hands of un-appointed third parties.
Second, under what circumstances can the court do an in camera interview of a child without the parties and their counsel present? Well, absent an agreement between the parties, the court can do so if it prepares a record of the interview and makes the record of the interview a part of the record in the case, unless to do so would endanger the safety of the child. Va. Code § 20-124.2:1. Now, most people would interpret this code section to require the presence of a court reporter to record the interview and prepare the record of the interview for its incorporation into the court’s record of the case. However, in this case, the father argued that a record of the interview was made a part of the record of the case when the judge recited the details of his in camera interview with the child. While this argument should have failed because nothing is necessarily “prepared” in that situation, the court never bothered addressing it because the child in this case never stated a preference in his interview and therefore it was harmless error that the trial judge may have done the in camera interview wrong.