"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.
This practice, whereby the best interests of the child are decided outside of a courtroom, should have been dispensed with long ago. The Virginia Code makes this clear. Delegation orders also run afoul of the United States Constitution. Delegation violates the fundamental right to parent and can violate an individual's physical liberty when that individual is held in contempt of court orders made by a non-judicial decision maker. Other states have banned the practice for years. Delegation is simply a cultural relic of the Virginia trial courts that has never had any legal basis.
Dale Margolin Cecka, Improper Delegation of Judicial Authority in Child Custody Cases: Finally Overturned, 52 U. Rich. L. Rev. 181 (2017).