8.14 Adjudication

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

8.14 ADJUDICATION

8.1401 Standards of Proof. In initial claims for child custody or visitation, the ultimate standard applied by the court is the "best interests" of the child, but the burden for meeting this standard varies depending on who the parties are. Where the dispute is between the child's parents, the prevailing party must demonstrate by a "mere preponderance" of evidence that the child's best interests will be served by granting the relief sought. When the dispute is between the child's parents and a third party, the court can award custody of the child to the third party only if there is "clear and convincing" evidence that such an award will serve the child's best interests. In disputes between parents and the Department of Social Services, the court must first determine that the child is within the jurisdiction of the court before it can proceed to make a disposition for the child that is consistent with the child's best interests; for example, where a child is shown to have been abused or neglected and evidence is produced showing that the child must be removed from the parent's care.

8.1402 Evidentiary Issues.

A. In General. Trial courts generally apply the customary rules of evidence applicable in civil suits to child custody and visitation disputes. Evidentiary foundations must be laid, the rules governing expert opinions must be followed, and the admissibility of documents or statements by others are handled as they customarily are handled.

B. Abuse or Neglect. There are several special statutes allowing the admission of evidence concerning "family abuse" or "child abuse or neglect." Child custody and visitation disputes often involve those claims, and therefore, counsel should be aware of these special statutes.

Section 16.1-245.1 of the Virginia Code allows for the admission into evidence of medical records without requiring a physician or records custodian to be present in court. This special procedure applies only in cases involving allegations of "family abuse" or "child abuse or neglect" and can be used only in juvenile and domestic relations district court proceedings. Sufficient

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notice must be provided to the opposing party, and the documentary evidence must be properly attested. ¹⁴⁷

Some statements of a child concerning sexual abuse, which would otherwise be considered inadmissible hearsay statements, may be admitted into evidence pursuant to section 63.2-1522 of the Virginia Code. In civil cases involving...