“Consulting” Children in Permanency Hearings: Phronesis and the Interpretation of Virginia Code Section 16.1-282.1(C)

The plight of the orphan has long been a staple in pop culture and literature. However, the legal system’s obligation to appropriately navigate permanency hearings for legal orphans has been far more opaque. This article provides guidance for judges in the Commonwealth of Virginia’s Juvenile and Domestic Relations Courts on the issue of “consulting” children in permanency hearings through a phronetic application of statutory interpretation principles while speaking broadly on the ethical responsibilities of judges.

“There can be no keener revelation of a society’s soul than the way in which it treats its children.” - Nelson Mandela¹

The plight of the parentless has long captured the public imagination.² The stories of Bruce Wayne, Anne Shirley, Clark Kent, Oliver Twist, Peter Parker, James Bond, Annie Warbucks, and Harry Potter demonstrate that children who lost their parents are ubiquitous in the collective social narrative of the world. Orphanhood can be a profound reflection of the failures of society, as “[t]he orphan appears as the emblematic consequence of failed politics, aggression and violence, inhumanity, or simply social incompetence and indifference in our urban landscapes.”³ The legal system also has a unique connection to the plight of the orphan (or functional orphan).⁴

More than any other legal entity, juvenile and domestic relations district courts (“JDR courts”) bear the burden of protecting and caring for children, including orphans and other children with complicated parental circumstances, in the Commonwealth of Virginia’s legal system.⁵ The Virginia legislature has made clear that ensuring the welfare of children is the primary concern in all JDR proceedings, listing it first among the priorities for Virginia’s JDR courts.⁶

One of the ways JDR courts are tasked with caring for children in the Commonwealth is by overseeing permanent home placements for children in foster care.⁷ While Virginia has not historically served as a model for successfully placing children in foster care with permanent families,⁸ the system can improve its treatment of children while still honoring the existing law by prioritizing the well-being of the children involved. The “best interests of the child” standard that guides the JDR courts in navigating foster care plans⁹ can and should clearly extend to permanency planning hearings.

“Permanency is a pillar of child welfare law; children generally do better with legally permanent caretakers than in temporary foster care.”¹⁰ JDR courts find a permanent home for children in foster care by conducting permanency planning hearings to determine the best home for the child(ren).¹¹ A key part of the permanency planning hearing is the “consultation” between the judge and the child.¹² Because children cannot independently file in court,¹³ consultations play an important role in permanency hearings by ensuring that the child’s voice is heard. Consultations between the judge and the child are common in state courts when determining custody.¹⁴

However, when approaching permanency planning it is important to acknowledge that the children involved have likely already experienced trauma. Around ninety percent of youth in foster care have experienced at least one traumatic event, such as “child abuse and neglect, exposure to domestic violence, community violence, [or] the violent death of a loved one.”¹⁵ Overall, adolescents in the foster care system “are a highly traumatized population and meet diagnostic criteria for PTSD at higher rates than general youth populations.”¹⁶ The emotional impact of foster care can be profound on children and ought not be exacerbated by the JDR court through the permanency planning process.

A consultation with the judge could potentially trigger a trauma response or be a uniquely traumatic event if handled incorrectly.¹⁷ JDR courts need to conduct permanency planning hearings in a manner that is legally permissible and emotionally healthy for the children involved. An important part of evaluating the permanency planning procedures for JDR courts is conclusively determining what the phrase “shall consult” and the word “consulting” mean in Virginia Code Section 16.1-282.1(C) (“Section 16.1-282.1(C)”). This article will address the various interpretative methods that can be used to determine how judges in JDR courts ought to interpret Section 16.1-282.1(C). Part I discusses the role of judges in JDR courts, Part II discusses the ambiguity of the text in Section 16.1-282.1(C), Part III applies the appropriate semantic and substantive canons of construction to further interpret and clarify the practical application of Section 16.1-282.1(C), and Part IV provides recommendations for how JDR judges should apply Section 16.1-282.1(C) during permanency planning hearings.

Judges occupy a unique and vitally important role in the legal system.¹⁸ As administrators of the legal system, judges fulfill “a general managerial role” in the courtroom.¹⁹ However, judges are not just administrators, as they can also impact the individuals who appear before them through systemic changes:

When most people picture judges, they see us wearing robes and making decisions in a courtroom. Of course, administering the law is our primary role. But it is not our only one. As first-hand observers of the flaws in our legal system, judges are uniquely positioned to help fix them. The ethical rules governing judges do not preclude such advocacy. To the contrary, ethical rules and their accompanying moral concerns require it.²⁰

To effect positive change in the legal system, judges must use practical wisdom to adjudicate the cases before them while also upholding judicial ethics.

A. The Role of Judges

Broadly, judges are tasked with adjudicating cases while relying on “preexisting legal rules and standards, whether or not they would personally endorse them.”²¹ Judges are bound by the laws of the land and must operate within the established justice system. Chief Justice John Roberts famously illustrated that point: “I will decide every case based on the record, according to the rule of law . . . and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”²² Judges are tasked with being “independent and honorable” in order to promote “justice in our society.”²³

The American Bar Association states that judges “should aspire at all times to conduct that ensures the greatest possible public confidence in their . . . integrity[] and competence.”²⁴ Ultimately, this means that judges must faithfully apply the laws of the land to people irrespective of their status or personal characteristics.²⁵ Beyond these ethical restraints, judges also ought to have “an interest in the good of the community represented by the laws. The judge’s interest is thus broader or more inclusive than the interests of parties.”²⁶

B. The Role of Judges in JDR Courts

The judges presiding over JDR courts, like all judges in Virginia, are bound to be “men and women of integrity, [who] will interpret and apply the law that governs our society” because judges “must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.”²⁷ While still bound by their obligations to the rule of law, JDR court judges are in a particularly influential position to provide care and minimize trauma to the children that appear before the court.²⁸ Unlike the attorneys in custody hearings, JDR court judges are not bound to zealously represent either party.²⁹ Instead, JDR court judges are expected to prioritize the well-being of the children.³⁰

JDR court judges have a great deal of power over the children, parents, and families that appear before them.³¹ They act with a great deal of discretion, which can be a burden for judges and a risk for litigants, as judges’ “broad and largely unreviewable discretion invites them to impose idiosyncratic value judgements on families.”³² As such, JDR court judges “should strive to adjudicate in such a way that is mindful of their temporary role in a family. Their job is to collaborate with the parties to ‘bind up the social fabric’ of the family that is in front of them, not fray the edges or create seams.”³³ Because of the wide deference given to JDR court judges, it is important that they have strong personal character and practical wisdom as they apply ambiguous statutes.

C. Judicial Character

The personal character of judges may seem superfluous to a discussion of statutory interpretation, but the reality is that the character of judges is directly relevant to their work.³⁴ Yale law professor Stephen Carter noted the following:

The rhetoric of judging insists that judges should put aside their personal beliefs when called upon to decide what the law requires. In constitutional adjudication especially, however, no matter how much judges strive to interpret without regard to their background morality, they cannot hope for a complete separation of judgment from judge.³⁵

Regardless of political affiliation or background, judges ought to operate with virtuous personal character.³⁶ Beyond the judiciary, everyone involved in the legal system ought to possess a virtuous character for both the betterment of the profession and society as a whole.³⁷

The word character can be defined as “the collection of stable, deep, and enduring dispositions that define who we are and shape how we characteristically think, feel, and act.”³⁸ While the idea of character is often mentioned in the legal field, it is largely constrained to determining whether a lawyer has the requisite “character and fitness” to be a licensed attorney.³⁹ This approach, while likely well intentioned, fails to sufficiently address the importance of character to the practice of law.⁴⁰ Much more than a threshold requirement for admission to the profession, virtuous character is an essential attribute that enables lawyers and judges to perform their jobs well and earn the public's trust.⁴¹

Perhaps the most important virtuous character trait for judges is practical wisdom (also known as “phronesis”).⁴² The Jubilee Center for Character and Virtues at the University of Birmingham defines “practical wisdom” as “the integrative virtue, developed through experience and critical reflection, which enables us to perceive, know, desire and act with good sense. This includes discerning, deliberative action in situations where virtues collide.”⁴³ Phronetic individuals make ethically correct decisions based on their experience and expertise.⁴⁴ Practical wisdom is essential for making sound decisions in situations where the right choice is not immediately clear.⁴⁵

Practical wisdom is particularly important for lawyers because lawyering frequently involves dueling obligations between what lawyers want and what is right. The virtue of practical wisdom is a way to deal with this tension, as it “enables a lawyer to discern, to analyze, to act—even when confronted with incomplete information or moral ambiguity.”⁴⁶ Fortunately, individuals, including legal professionals, can develop their practical wisdom through intentional practice.⁴⁷

The tension between competing goods also extends to judges, all of whom may be motivated by a number of different and sometimes adverse factors.⁴⁸ But these competing factors ought to all be in the pursuit of justice. As Anthony Kronman notes, “[t]he judge’s interest in the well-being of the law encompasses a variety of concerns—the concern for doctrinal coherence, for example, and for the responsiveness of doctrine to social and economic circumstances.”⁴⁹ Judges need to exercise practical wisdom because “[q]uite simply, judicial wisdom is phronesis; it is practical wisdom, as applied to the decisions a judge makes.”⁵⁰ Statutory interpretation is one area where judges can exercise practical wisdom in understanding the law and applying it correctly.

In JDR courts, judges need to be able to wisely navigate the tension between their obligation to the rule of law and their obligation to care for the children that appear before them. Simply defaulting to the “best interests of the child” standard⁵¹ alone is insufficient. The Supreme Court has pointed out that “the ‘best interests of the child’ standard offers little guidance to judges, and may effectively encourage them to rely on their own personal values.”⁵² Instead of making significant decisions based on their own ideals, judges in JDR courts need to incorporate phronesis so that they can both pursue the best interest of the child and accurately interpret statutes.⁵³

One way that JDR court judges can exercise practical wisdom is by interpreting ambiguous statutes. A common first step in determining the proper meaning of a statute is to “begin by looking for the ‘ordinary’ or ‘plain’ meaning of the statutory text.”⁵⁴ A text is considered ambiguous when there are multiple seemingly proper interpretations that would lead to different results. The Virginia Supreme Court guides as follows:

A statute is ambiguous when its language is “capable of more senses than one, difficult to comprehend or distinguish, of doubtful import, of doubtful or uncertain nature, of doubtful purport, open to various interpretations, or wanting clearness or definiteness,” particularly where its words “have either no definite sense or else a double one.”⁵⁵

Classifying a text as ambiguous is not necessarily a critique of its legislative authors, as ambiguity can occur for a number of reasons during the lawmaking process.⁵⁶ Even seemingly unambiguous words may prove ambiguous if they can be inconsistently applied.⁵⁷ In the case of Section 16.1-282.1(C), the phrase “shall consult” appears superficially unambiguous. However, this phrase ultimately is ambiguous due to the potentially inconsistent understanding and application of the word “consult.”

Dictionaries provide little value in determining the appropriate application of “consult” in Section 16.1-282.1(C). According to the Merriam-Webster Dictionary, the word “consult” can be used as a transitive verb meaning one of the following: “to have regard to”; “to ask the advice or opinion of”; or “to refer to.”⁵⁸ Furthermore, “consult” can be an intransitive verb meaning one of the following: “to consult an individual”; “to deliberate together”; or “to serve as a consultant.”⁵⁹ “Consult” can also be used as a noun meaning “a deliberation between physicians on a case or its treatment.”⁶⁰ Likewise, Black’s Law Dictionary provides multiple definitions for a “consultation” as either “the act of asking the advice or opinion of someone (such as a lawyer)” or a “meeting in which parties consult or confer.”⁶¹

Most importantly, none of the above definitions provide a specific way to conduct a consultation, leaving a great deal of ambiguity in the application of the term. The literal definition of the word provides little clarity for determining precisely how a consultation should take place and what it should involve. Because there is no one universal definition or application of the word “consult” or “consulting” standing alone, the word “consult” as found in Section 16.1-282.1(C) is determined to be ambiguous due to the potentially inconsistent understanding and application of the word “consult.”

The words of a statute can be further defined by the context of the statute as a whole.⁶² Analyzing the context of the entire statute is an essential part of the judiciary’s duty “to construe statutes, not isolated provisions.”⁶³ Therefore, at this point it is imperative to look at the context of Section 16.1-282.1(C):

In each permanency planning hearing and in any hearing regarding the transition of the child from foster care to independent living, the court shall consult with the child in an age-appropriate manner regarding the proposed permanency plan or transition plan for the child, unless the court finds that such consultation is not in the best interests of the child.⁶⁴

The context, like the definitions of the word “consult,” does not specify how the consultation should take place, rendering the word “consult” ambiguous. In fact, the context of this statute further highlights the ambiguity of the word “consult” due to the lack of contextual instruction regarding how a consultation should take place.

“Consult,” as used in Section 16.1-282.1(C), is ambiguous in its definition and application. Because the text of the statute is ambiguous, statutory interpretation is necessary.⁶⁵ Faithfully applying the laws is a fundamental responsibility of judges, so ensuring the law’s requirements are properly understood and applied is vitally important.⁶⁶ Additionally, statutory interpretation allows a judge to exercise practical wisdom by looking at a myriad of sources to determine what is best because “no single theory of statutory interpretation appears capable of capturing—and certainly not definitively directing—this practice, nor does it appear feasible to develop such a comprehensive theory.”⁶⁷ Statutory interpretation—and more specifically the use of specific canons of construction—will require practical wisdom on the part of the judge.⁶⁸

A. Statutory Interpretation Overview

Before looking specifically at the interpretation of Section 16.1-282.1(C), it is helpful to have a general discussion of statutory interpretation and the role of practical wisdom in interpreting ambiguous texts. The interpretation of laws is fundamentally important to a society’s function as it shapes how people interact with the society and each other.⁶⁹ Statutory interpretation is a key part of determining what precisely the law—as written by legislators—means and how it should be applied.⁷⁰ Employing a rational, intellectual, and consistent hermeneutic allows laws to be interpreted in a way that can be fairly applied to everyone.⁷¹

Judges play a unique and integral role in the process of statutory interpretation. Chief Justice John Marshall stated that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”⁷² The interpretive and policy views of a judge are highly influential in the judge’s interpretation of statutory texts.⁷³ Because judges play such a large role in the interpretation of legal texts, it is important that they exercise practical wisdom as they discern the best legal course of action.⁷⁴

Two frameworks are primarily used to determine the meaning of a statute: purposivism⁷⁵ and textualism.⁷⁶ The proponents of these views are often at odds with one another,⁷⁷ as vividly illustrated by the various opinions in the 2025 Supreme Court case Stanley v. City of Sanford.⁷⁸ The textualists, represented by Justice Neil Gorsuch, contended that a plain reading of the text supplied the answer and that a purposivist reading would be superfluous and manipulative, ultimately leading to an incorrect conclusion.⁷⁹ Meanwhile, Justice Ketanji Brown Jackson represented the purposivist view in her dissent:

Our interpretative task is not to seek our own desired results (whatever they may be). And, indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress’s aims does exactly that—and no more. By contrast, pure textualism’s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. By ‘finding’ answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as ‘textual’ inevitabilities.⁸⁰

These competing opinions highlight both the tensions between textualism and purposivism and the necessity for judges to use practical wisdom—in addition to traditional statutory interpretive methods—to identify the correct interpretation of a statute.

Regardless of ideology or statutory interpretation method, a judge’s ability to deliberate and interpret text is enhanced by personal virtue.⁸¹ For example, judges are called upon to be courageous,⁸² curious,⁸³ and collegial.⁸⁴ Likewise, judges must be practically wise, as practical wisdom encapsulates an individual’s ability to deliberate well.⁸⁵ Practical wisdom is fundamentally important to navigating ambiguity around a decision. As noted by Professor R. Michael Cassidy, “[p]ractical wisdom is the ability to deliberate well—to recognize and perceive proper ends, and then to select those means that are likely to achieve such ends. Deliberation toward any end is cleverness; deliberation toward a good end is practical wisdom.”⁸⁶ Judges must be able to arrive at the correct decision even when dealing with ambiguous or complicated issues.

As illustrated above by Justice Jackson, purposivists believe that “legislation is the product of a deliberative and informed process. Statutes in this conception have purposes or objectives that are discernible. The task of the judge is to make sense of legislation in a way that is faithful to Congress’s purposes.”⁸⁷ The purpose of the legislation, rather than the word itself, is the guiding factor; therefore, “[w]hen the text is ambiguous, a court is to provide the meaning that the legislature intended.”⁸⁸ The purposivist interpretation is ultimately concerned with the intent of the legislature that made the rule rather than the specific language used.⁸⁹

Whereas purposivism is concerned with the intent of a statute, pure textualism is primarily concerned with the specific language used in a statute.⁹⁰ Proponents of textualism contend that a strict adherence to the text itself is a vital safeguard against judicial activism.⁹¹ Under the textualist approach, “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”⁹² To textualists, the language of the text is the ultimate authority for interpreting a statute.⁹³

Often, scholars find that the distinction between purposivism and textualism is blurry, or even functionally nonexistent.⁹⁴ Both textualism and purposivism can be used to reach ideologically-based outcomes. Some critics contend that textualism is "insensitive to the actual workings of Congress, overly rigid, or (conversely) overly malleable and thus not much different from its main competitor purposivism.”⁹⁵ The overlap between interpretive philosophies enables judges to use several methods to identify the most accurate interpretation of a statute. The following statutory analysis will attempt to illustrate this harmony by using legislative history as well as semantic and substantive canons of construction to arrive at the proper interpretation of Section 16.1-282.1(C).

B. Legislative History

If the text itself is ambiguous, it is important to examine its legislative history to determine if the enacting legislators’ intentions were clearly expressed.⁹⁶ Although historically associated more with purposivism, legislative history is helpful for both a textualist and purposivist.⁹⁷

The legislative history of Section 16.1-282.1(C) begins in 2017 as an amendment to the then existing Virginia Code Section 16.1-282.1.⁹⁸ The amendment was originally proposed by Representative Richard Bell in HB 1604.⁹⁹ The pertinent text of HB 1604 read as follows: “In each permanency planning hearing and in any hearing regarding the transition of the child from foster care to independent living, the court shall consult with the child in an age-appropriate manner regarding the proposed permanency plan or transition plan for the child.”¹⁰⁰ The first draft of this bill was not the final one, which means that some weight must be given to the changes made by the legislature.¹⁰¹

The second and final draft of the amendment was suggested and adopted by the Courts of Justice Committee.¹⁰² The important distinction between the first draft and the second and final draft is the addition of the phrase “unless the court finds that such consultation is not in the best interests of the child” to the end of HB 1604’s original text.¹⁰³ The addition is important to address because the Court of Appeals of Virginia “assume[s] that the legislature’s amendments to the law are purposeful and not unnecessary.”¹⁰⁴ Therefore, this addition indicates that the legislature believes there is a time or a type of consultation that would not be in the best interest of the child.

One relevant purpose of this proposed bill was to “make[] other changes related to foster care to comply with federal requirements.”¹⁰⁵ A comparable federal provision to Section 16.1-282.1(C) appears in the Fostering Connections to Success and Increasing Adoptions Act of 2008, which provides that “[w]ith respect to a child who has attained 14 years of age, the child has been consulted regarding the kinship guardianship arrangement.”¹⁰⁶ Likewise, the Social Security Act provides that “in any permanency hearing held with respect to the child . . . the court or administrative body conducting the hearing consults, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child.”¹⁰⁷

The final draft of Section 16.1-282.1(C), as recommended by the Courts of Justice Committee, unanimously passed both the House and Senate before being signed into law on February 23, 2017.¹⁰⁸ The new version of the statute became effective on July 1, 2017.¹⁰⁹ However, other than acknowledging that some consultations might not be in the child’s best interest, the statute’s legislative history does little to illuminate the legislators’ intent for the word “consult.”¹¹⁰ Therefore, actual statutory interpretation is needed to best determine the proper way to “consult” a child according to Section 16.1-282.1(C).

C. Applying Canons of Construction

So far, no definitive conclusion can be made about the application of the words “shall consult” due to the ambiguous nature of the term and the various definitions and applications of the word “consult.”¹¹¹ Further, the legislative history of Section 16.1-282.1(C) provided no ultimate answer for the proper application of “shall consult” other than the revelation that there is a way for a consultation to be conducted that would be considered improper and not in the best interests of the child.¹¹² Therefore, additional work must be done to determine the best permissible practices for the consultation of children in permanency hearings in Virginia JDR Courts.

Here, the analysis will focus on a “mechanical form of jurisprudence”¹¹³ and use canons of construction to correctly understand and apply Section 16.1-282.1(C). What follows is the use of interpretive tools, most commonly referred to as “canons of construction” that allow the reader to logically extrapolate the proper understanding of a statutory text.¹¹⁴ Phronesis is inherently required as the use of these canons of construction is “an art and not a science. . . . It is critical to understand that these canons are not ends in themselves but rather serve as a means to get to the intent of the legislature. They are merely guideposts in determining legislative intent.”¹¹⁵ Each canon used in this analysis illuminates a portion of the legislative intent, and when all the canons are combined, a full picture of the proper application of Section 16.1-282.1(C) will be clear.

Using the canons of construction to interpret a statute is a two-step process—as advocated by Supreme Court Justice Brett Kavanaugh—that begins by applying the semantic canons of construction before moving to the substantive canons.¹¹⁶ Justice Kavanaugh asserts that courts should first “interpret[] the words of the statute, tak[e] account of the context of the whole statute, and apply[] any other appropriate semantic canons of construction.”¹¹⁷ Only after applying the semantic canons of construction can the courts “apply—openly and honestly—any substantive canons.”¹¹⁸ Using both semantic and substantive canons, the meaning of “shall consult” in Section 16.1-282.1(C) can be determined with a great deal of clarity and confidence.

Semantic canons of construction focus primarily on the text of the statute itself, and for this reason, they are highly favored by textualists.¹¹⁹ Justice Kavanaugh notes that “[s]emantic canons are generally designed to reflect the meaning that people, including Members of Congress, ordinarily intend to communicate with their choice of words.”¹²⁰ The semantic canons used for the purpose of determining the meaning of “shall consult” in Section 16.1-282.1(C) include the following: the ordinary-meaning rule, the whole-act rule or “presumption of consistent usage,” and the mandatory/permissive canon.

The ordinary-meaning rule “guides the court to interpret the legislative intent, when it fails to define a word, to have its ordinary meaning.”¹²¹ If a statute does not provide a specific definition of a term, courts are free to “construe [the term in question] in accord with its ordinary or natural meaning” including using the dictionary to define the term.¹²² Section 16.1-282.1(C) does not define “consult” in its text nor does it provide a specific application for how such a consultation should take place.¹²³

While a declaration of ambiguity and reliance on dictionary definitions may sound redundant to an earlier portion of this discussion, there is information to be gleaned from the lack of specificity used by the General Assembly in constructing this law. Specifically, there is no “ordinary reading” or dictionary definition of “consult” that requires the consultation to take place in a public court.¹²⁴ In fact, most of the definitions of “consult” tend to imply a private meeting.¹²⁵ But even without including any inferred meaning, it is clear that a public consultation occurring in a court of law is not required.

The legislature’s choice of words can help the reader determine whether it intended to require or permit a party to take an action. In particular, the word “shall” likely indicates that congressional intent was to require a particular action.¹²⁶ While not always possible due to the poor drafting of some bills, the mandatory/permissive canon instructs that “when the word shall can reasonably be read as mandatory, it ought to be so read.”¹²⁷

As noted previously, the word “shall” in Section 16.1-282.1(C) reasonably indicates that the legislative intent was to require judges to conduct consultations with children as part of permanency hearings. The exception included in the final phrase of Section 16.1-282.1(C)—“unless the court finds that such consultation is not in the best interests of the child”—further indicates that unless a clear cause exists, a judge is required to conduct consultation with a child in a permanency hearing.¹²⁸

The presumption of consistent usage is the idea that “[a] word or phrase is presumed to bear the same meaning throughout a text,” and therefore, “a material variation in terms suggests a variation in meaning.”¹²⁹ Courts have historically maintained that words ought to be interpreted consistently in a single statute. The Supreme Court has noted that “identical words used in different parts of the same statute are generally presumed to have the same meaning.”¹³⁰ How the word “consult” is used in Title 16.1 of the Virginia Code (“Title 16.1”) will provide clarity for how “consult” ought to be understood in Virginia Code Section 16.1-282.1.

Context still matters as an interpretive guide for the presumption of consistent usage. Justice Kavanaugh notes that “judges turn this commonsense observation about human language into an ironclad rule. Those judges will never allow the same word to mean different things in different places in a statute, no matter how much the context suggests otherwise. Of course, that rigidity is inappropriate . . . .”¹³¹ Just because a word is repeatedly used does not guarantee the General Assembly did not intend for the word to be used differently in the context in which it appears. Therefore, the scope of research on the usage of the word “consult” was limited to Title 16.1.

The word “consult,” or some variation thereof, appears in twenty-two sections of Title 16.1.¹³² “Consult,” as used in Title 16.1, is consistently used to refer to private conversations. For example, a juvenile—when charged with an offense that would constitute a felony if committed by an adult—can only waive the right to attorney representation after the juvenile “consults with an attorney.”¹³³ Likewise, a minor must have a “consultation with her physician” in order to be well-informed about making “her abortion decision.”¹³⁴ These usages of “consult” indicate the consultation should happen in a private setting rather than in a public one.

The General Assembly does have language for requiring a person to answer questions in a public forum: “testifying.”¹³⁵ The language used by the legislature in regard to “consulting” is significantly different from the language used by the legislature to discuss “testifying.” For example, Virginia Code Section 16.1-88.2(2) allows health care providers to be subpoenaed in order to obtain their testimony in court.¹³⁶ Because “consult” is consistently used to reference private discussions in Title 16.1 and because the General Assembly found occasion to use “testify” to indicate an in-court appearance in Title 16.1, the presumption of consistent usage would indicate that “consult” in Section 16.1-282.1(C) contemplates a private conversation.

Looking beyond the statutory text to determine legislative intent, substantive canons are “policy-based background norms or presumptions” that allow judges to make decisions that align with or are guided by policy rather than the specific words used in the statute.¹³⁷ Substantive canons are described as either “express[ing] a rule of thumb for choosing between equally plausible interpretations of ambiguous texts” or “permitting a court to forgo a statute’s most natural interpretation in favor of a less plausible one more protective of a particular value.”¹³⁸ To put it simply, substantive canons are concerned with the spirit of the law whereas semantic canons are concerned with the letter of the law.

The letter of the law, as seen in the semantic canons, provided a significant but incomplete interpretation of “shall consult,” and therefore, further interpretation is needed. Section 16.1-282.1(C) has significant policy-based factors that influence the proper interpretation of the statute. Two substantive canons—the rule against absurdity and the harmonious reading canon—are used here to further clarify the legislative intent behind the words “shall consult” in Section 16.1-282.1(C).

The rule against absurdity is “the judiciary's recognition of a doctrine of statutory interpretation that authorizes departures from the plain meaning of statutory text when its literal application would lead to an ‘absurd’ result in a particular case.”¹³⁹ The Supreme Court has relied on the absurdity doctrine to interpret statutes, presume legislative intent, and apply the law in a more reasonable manner. In Griffin v. Oceanic Contractors, Inc., the Court noted that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available."¹⁴⁰ The absurdity to be avoided is more than merely a logical non sequitur, rather “the absurdity must be so gross as to shock the general moral or common sense.”¹⁴¹ The question at hand is whether or not an application of Section 16.1-282.1(C) that requires children to be publicly consulted in a courtroom is, in fact, absurd. To answer this question, it is beneficial to first examine if that application violates the purpose of the law’s creation and if such an application would be functionally problematic.

An interpretation of “shall consult” that requires a child to appear in court is absurd because it does not align with the origin of Section 16.1-282(C). As stated previously, the legislative history identifies that alignment with federal guidelines was the primary motivator for adding Section 16.1-282.1(C).¹⁴² Importantly, because federal guidelines on permanency hearings were influential in the drafting of Section 16.1-282(C), federal guidelines also provide some clarity on the actual procedure for “consulting” children in a permanency hearing. For example, while interpreting a provision of the Social Security Act concerning permanency hearings, the Department of Health and Human Services stated the following:

We do not interpret the term “consult” to require a court representative to pose a literal question to a child or require the physical presence of the child at a permanency hearing. However, the child's views on the child's permanency or transition plan must be obtained by the court for consideration during the hearing.¹⁴³

While this interpretation is not binding on Virginia’s interpretation of Section 16.1-282.1(C), it is beneficial to note that the federal government permits written reports to be submitted to the court in lieu of the child’s actual presence.¹⁴⁴ Likewise, oral reports of the child’s view from an attorney, caseworker, or guardian ad litem are sufficient to meet the “consultation” requirement (so long as the reports are the child’s actual views and not just what is in the child’s best interest).¹⁴⁵ However, the federal government permits children to be brought into the courtroom “if the court is not satisfied that it has obtained the views of the child through these or any other mechanism.”¹⁴⁶

If Section 16.1-282.1(C) was created to align Virginia’s code with federal regulations, an application that forces children to appear in court would be absurd and contradictory to the federal guidelines. A state law being out of line with federal guidelines is not, by itself, determinative. However, if the state law was written to conform state laws to federal laws—as was the case with this statute—it would be entirely absurd to ignore specifically relevant federal guidelines.

Additionally, making children appear physically in court is a less effective tool for getting accurate answers from a child compared to other, more private, options. For example, the use of a child witness in criminal cases can have disastrous results for both the child and the prosecution’s case.¹⁴⁷ Likewise, in a custody case, asking a child to testify in front of parental figures (be it biological, adoptive, or foster parents) also creates the possibility of inaccurate testimony from the child due to parental influences.¹⁴⁸ Removing the child from the pressures of the courtroom and allowing the child to interview privately with the judge can increase the accuracy of the interview.¹⁴⁹ An interpretation of the statute that requires the judge to use the less accurate tool without any explicit justification for using such a tool—in this case, publicly “consulting” the child in the courtroom—is absurd.

The harmonious reading canon requires readers to interpret the law in a way that fundamentally agrees with other relevant statutes.¹⁵⁰ Scalia and Garner note that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.”¹⁵¹ This principle was illustrated in Lindh v. Murphy when the Court chose the interpretation that “accord[ed] more coherence” than alternative options.¹⁵² In order to harmoniously read Section 16.1-282.1(C), one must look at the specific provision and also at the provision’s place within the larger context of laws discussing JDR Courts.

In stating the purpose for JDR courts, the General Assembly concluded that “it is the intention of this law that in all proceedings the welfare of the child . . . may be attained.”¹⁵³ However, asking a child to testify in court can be harmful to the child.¹⁵⁴ Likewise, the stress from a custody hearing “can manifest itself in a regression of the child’s psychological development.”¹⁵⁵ One can safely assume that exposing a child to such a stressful and potentially traumatic experience would not help the court’s purpose of pursuing the well-being of the child. Researchers have found clear evidence that “traumatic stress can have substantial negative and lasting impacts on human development, functioning, and quality of life.”¹⁵⁶ Because “child custody proceedings are predictably stressful,” it is necessary to find ways to minimize trauma to children during permanency hearings.¹⁵⁷

An application of Section 16.1-282.1(C) that requires a child to be present in the court during a permanency hearing would be inherently stressful to a child. Dr. Robert H. Pantell, a Professor of Pediatrics at the University of California, San Francisco, has found a “growing body of scientific literature on the psychological and physiologic consequences of children . . . appearing in court.”¹⁵⁸ The Supreme Court has allowed children to avoid testifying live in a criminal court case and therefore avoid stress on the child due to “the State’s traditional and ‘transcendent interest in protecting the welfare of children’. . . and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court.”¹⁵⁹ Interpreting “shall consult” in Section 16.1-282.1(C) to mean that a child must appear in a courtroom and answer questions in a manner resembling testimony would be antithetical to the stated purpose of the JDR courts in Virginia Code Section 16.1-227; such a conflicting and unharmonious interpretation ought to be rejected.

Virginia JDR courts can be a place of healing for children involved in permanency planning hearings.¹⁶⁰ In these permanency hearings, JDR court judges are asked to balance the competing goals of “achieving a custodial arrangement that best serves the child’s interest; protecting the child from emotional harm; safeguarding the parties’ due process rights; and promoting the integrity of the judicial system.”¹⁶¹ JDR courts need to consciously determine best practices to ensure the psychological well-being of the children involved in permanency planning.

Working with children in the legal context requires significant effort to ensure both the child’s well-being is protected and the information obtained from the child is accurate.¹⁶² Custody issues (such as permanency hearings), in particular, require special care from all parties involved.¹⁶³ JDR courts can conduct permanency hearings for a child successfully by allowing the child to have private interactions with the judge, using technology to ease the psychological burden on the child, and utilizing other professionals.

An interpretation that avoids putting a child in the courtroom during a family proceeding does not preclude a child from conversing with the judge. In fact, child advocates contend that while avoiding testifying in open-court, “it is in the best interest of the child for a judge to conduct a hearing in chambers with the child.”¹⁶⁴ Interacting with a judge can actually increase the welfare of a child because “judicial interviews offer children a different way of being heard and have the potential to enhance their experience of participation.”¹⁶⁵ This approach puts a burden of preparation on the judge, but such preparation reduces the likelihood of trauma for the child and increases the likelihood that the information will be accurate.¹⁶⁶ If the consultation is handled correctly, the judge can have a lasting positive impact on the child in the case.

Incorporating technology into the consultation is a way of allowing the child to be heard without the stress of a traditional “in-court” appearance. A permanency hearing can take place effectively as part of an in-camera testimony which allows the child to be heard in court (via a testimony recorded earlier in the judge’s chambers) without the stress of appearing in court.¹⁶⁷ Conducting the consultation in open-court will “likely [] impair [a child’s] communicative abilities,” making a recorded consultation more reliable.¹⁶⁸ As technology continues to advance, alternate technology may prove to be even more effective at eliciting truth from a child without causing any undue harm.

In addition to using technology, a judge can also include other qualified professionals in the permanency hearing. These other professionals can help ensure the child’s emotional well-being is being preserved while also striving to get important information from the child. Interestingly, it may be helpful to include a child psychologist during the consultation.¹⁶⁹ The addition of a child psychologist can help the judge adjust to the child’s needs while also getting clear, reliable information from the child.¹⁷⁰

Other legal professionals, such as guardians ad litem, can help the judge consult with a child in a manner that preserves the child’s well-being and helps the judge recommend the best course of action for the child.¹⁷¹ The role of the guardian ad litem in a consultation with a child would be to “protect and advocate for the interests of the children.”¹⁷² A guardian ad litem, as an adult whose sole responsibility is to protect the child’s interests, would be a valuable resource for a judge to use in privately consulting a child.

While a relatively obscure piece of statutory text, the words “shall consult”—as found in Section 16.1-282.1(C)—are far from trivial. A misapplication of these words can lead to traumatized children and a misinformed judge. Ultimately, the goal of a judicial interview or consultation with a child should be “that the judge has accurate information, that the child continues to have some input into the decision, and that the process operates in a manner which seeks to minimize the potential trauma to the child.”¹⁷³ Keeping this goal in mind, it is clear that the best option for “consulting” a child as required by Section 16.1-282.1(C) is best done in private, by a well-trained judge, using whatever people or tools the judge deems appropriate.

^*Benjamin Rigney serves as the Director of the Leadership and Character Law Network at Wake Forest University School of Law. He would like to thank The Honorable Frank W. Rogers III for his guidance and mentorship. He would also like to thank Kenneth Townsend, The Program for Leadership and Character at Wake Forest University, and The Kern Family Foundation for their continued support in promoting practical wisdom in the legal profession. Thanks also to the excellent work of the Regent University Law Review editors.

¹Nelson Mandela, President of S. Afr., Speech at the Launch of the Nelson Mandela Children’s Fund (May 8, 1995).

²See Melanie A. Kimball, From Folktales to Fiction: Orphan Characters in Children’s Literature, 47 Libr. Trends 558, 558 (1999).

³Marion Gymnich et al., The Orphan in Fiction and Comics Since the 19th Century 12 (2018).

⁴See, e.g., LaShanda Taylor Adams, Legal Orphans Need Attorneys to Achieve Permanency, 33 Child L. Prac. 225, 225 (2014).

⁵See Va. Code Ann. § 16.1-227 (LexisNexis, LEXIS through 2026 Spec. Sess. I).

⁶See id. (LEXIS) (“It is the intention of this law that in all proceedings the welfare of the child and the family, the safety of the community and the protection of the rights of victims are the paramount concerns of the Commonwealth . . . .”).

⁷Id. § 63.2-906(B)–(C) (LEXIS).

⁸See Nadine Marsh-Carter et al., Virginia Ranks Forty-Ninth of Fifty: The Need for Stronger Laws Supporting Foster Youth, 53 U. Rich. L. Rev. 255, 255, 263 (2018).

⁹See § 16.1-281(A) (LEXIS).

¹⁰Josh Gupta-Kagan, The New Permanency, 19 U.C. Davis J. Juv. L. & Pol’y 1, 2 (2015).

¹¹See § 16.1-282.1 (LEXIS).

¹²See id. § 16.1-282.1(C) (LEXIS).

¹³See id. § 8.01-8 (LEXIS).

¹⁴See Douglas E. Abrams et al., Children and the Law: Doctrine, Policy, and Practice 241 (8th ed. 2024) (“To help inform the trial court about the child’s wishes . . . states typically permit the court to interview children who are the subjects of contested custody proceedings before, during, or after divorce. . . . The expectation is a face-to-face discussion between judge and child, usually in the presence of counsel but not of either parent.”).

¹⁵Shannon Dorsey et al., Prior Trauma Exposure for Youth in Treatment Foster Care, 21 J. Child & Fam. Stud. 816, 816 (2012) (citing Bradley D. Stein et al., Violence Exposure Among School-Age Children in Foster Care: Relationship to Distress Symptoms, 40 J. Am. Acad. Child & Adolescent Psychiatry 588, 591 (2001)).

¹⁶Amy M. Salazar et al., Trauma Exposure and PTSD Among Older Adolescents in Foster Care, 48 Soc. Psychiarty & Psychiartic Epidemiology 545, 545 (2013).

¹⁷See generally Robert E. Emery, Children’s Voices: Listening—and Deciding—is an Adult Responsibility, 45 Ariz. L. Rev. 621, 623 (2003) (suggesting that consulting children is not in the child’s best interest in custody decisions because exposing children to parental conflict is “psychologically damaging to children”).

¹⁸SeeWilliam D. Popkin, Statutes in Court 211 (1999) (“All we need to justify a collaborative judicial role in statutory interpretation is to conclude that some decision-maker should be concerned with how a statute fits into its past and its future and should make judgments about the competence of various institutions to perform this task. No other institution but the judiciary can perform this function with the sustained attention to the complexities of applying law to particular cases, which is desirable in a well-ordered government.”).

¹⁹Geoffrey C. Hazard & Angelo Dondi, Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits, 39 Cornell Int’l L.J. 59, 62 (2006).

²⁰Bridget Mary McCormack, Staying Off the Sidelines: Judges as Agents for Justice System Reform, 131 Yale L.J.F. 175, 189 (2021), https://www.yalelawjournal.org/forum/staying-off-the-sidelines-judges-as-agents-for-justice-system-reform (on file with the Regent Law Review Online).

²¹Nina Varsava, Professional Irresponsibility and Judicial Opinions, 59 Hou. L. Rev. 103, 115 (2021).

²²Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States Hearing Before the Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John Roberts, nominee for C.J. of the U.S.).

²³Code of Conduct for U.S. Judges Canon 1 (Jud. Conf. 2019).

²⁴Model Code of Jud. Conduct pmbl. [2] (A.B.A. 2020).

²⁵See 28 U.S.C. § 453.

²⁶Anthony T. Kronman, The Lost Lawyer 118 (1993).

²⁷Canons of Jud. Conduct for the Commonwealth of Virginia pmbl. (Sup. Ct. of Va. 2024).

²⁸Shawn C. Marsh et al., Nat’l Council of Juv. & Fam. Ct. Judges, Preparing for a Trauma Consultation in your Juvenile and Family Court 2 (2015) (“[J]uvenile and family judges and courts are in a unique position to promote healing and prevent future trauma.”).

²⁹SeeModel Rules of Pro. Conduct r. 1.3 cmt. (A.B.A. 1983) (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.”).

³⁰See Ann Reyes Robbins, Troubled Children and Children in Trouble: Redefining the Role of the Juvenile Court in the Lives of Children, 41 U. Mich. J.L. Reform 243, 243 (2007).

³¹See Leonard P. Edwards, The Juvenile Court and the Role of Juvenile Court Judge, 43 Juv. & Fam. Ct. J. 1, 25 (1992).

³²Sean Hannon Williams, Divorce All the Way Down: Local Voice and Family Law’s Democratic Deficit, 98 B.U. L. Rev. 579, 580–81 (2018).

³³Claire P. Donohue, The Unexamined Life: A Framework to Address Judicial Bias in Custody Determinations and Beyond, 21 Geo. J. Gender & L. 557, 613 (2020) (quoting E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice 27 (1988)).

³⁴See Benjamin Rigney, Restoring the Public’s Faith: Character Education and the Supreme Court, 14 St. Mary’s J. on Legal Malpractice & Ethics 296, 300–01 (2024).

³⁵Stephen Carter, The Confirmation Mess, 101 Harv. L. Rev. 1185, 1198 (1988).

³⁶See Robert J. Araujo, Moral Issues and the Virtuous Judge: Reflections on the Nomination and Confirmation of Supreme Court Justices, 35 Cath. Law. 311, 338 (1994) (“The virtues of justice, prudence, courage, and wisdom reveal little about how a judge will decide a specific case. Nevertheless, they are indicative of the kind of person he is and how best to arrive at a just solution for individuals as well as the public good. And that is as it should be.”).

³⁷See Kenneth Townsend, Forming Good Lawyers, 58 Wake Forest L. Rev. 981, 983 (2023) (“A healthy and well-developed professional identity enables a lawyer to navigate competing duties and demands; to develop the capacities of intellect and character to face professional pressures; and to find, as appropriate, opportunities to integrate personal values and professional aspirations.”).

³⁸Michael Lamb, Jonathan Brant & Edward Brooks, How Is Virtue Cultivated? Seven Strategies for Postgraduate Character Development, 17 J. Character Educ. 81, 82 (2021).

³⁹See, e.g., Va. Code Ann. § 54.1-3925.1 (LexisNexis, LEXIS through 2026 Spec. Sess. I).

⁴⁰SeeDeborah L. Rhode, Character: What it Means and Why it Matters 42 (2019) (The research . . . casts doubt on the effectiveness of current character screening processes . . . . Many character-related exclusions are arbitrary, overinclusive, and insufficiently justified by performance concerns. Some seem calculated less to enhance public protection than professional image.”).

⁴¹See Rigney, supra note 34, at 323 (“The work of character development is an individual action that each member of the legal community can take to have a ‘substantial effect’ on how lawyers act and are perceived by the general public.”).

⁴²See Jerome Kroll & Perry C. Mason, Phronesis (Practical Wisdom), inThe Virtues in Psychiatric Practice 165, 165 (John R. Peteet ed., 2022).

⁴³Univ. of Birm.. The Jubilee Centre Framework for Character Education in Schools 8 (3d ed. 2022), https://www.jubileecentre.ac.uk/wp-content/uploads/2024/12/The-Jubilee-Centre-Framework-for-Character-Education-in-Schools.pdf (on file with the Regent Law Review Online).

⁴⁴See Mervyn Conroy et al., Using Practical Wisdom to Facilitate Ethical Decision-Making: A Major Empirical Study of Phronesis in the Decision Narratives of Doctors, 22 BMC Med. Ethics, 2021, at 1, 2 (“Phronesis is . . . grounded in an accumulated wisdom gained through previous practice dilemmas and decisions . . . . [It] allow[s] ethical choices to be executed in practice.”).

⁴⁵See Sami Ullah Bajwa et al., Brief Communication: Phronesis Knowledge as Enabler of Intuitive Decision Making, 42 Knowledge Org. 40, 47 (2015) (“[P]ractical wisdom lies in one’s ability to understand the novel and complex contexts and take appropriate and admissible decisions.”).

⁴⁶Kenneth Townsend, Purpose, Practical Wisdom, and the Formation of Trustworthy Lawyers, 75 Mercer L. Rev. 1399, 1408 (2024).

⁴⁷Deborah J. Cantrell & Kenneth Sharpe, Practicing Practical Wisdom, 67 Mercer L. Rev. 331, 331 (2016) (“[O]ne can learn and acquire wisdom intentionally and skillfully—one can practice it. And, if the practice is structured in particular ways, the practice will improve one’s capacities to act with wisdom. For lawyers, and even more so for law students, that should be heartening.”).

⁴⁸See Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. Rev. 1049, 1059 (2006) (“Some judges have a pro-government leaning, others a pro-defendant leaning, and this drives their votes in close cases, whether the case arises under the Constitution or under a statute, even though from a formal legal standpoint the text of the enactment being applied ought to drive the outcome and there are huge textual differences between the Constitution and statutes.”).

⁴⁹Kronman, supra note 26, at 118.

⁵⁰Jeremy A. Blumenthal & Daria A. Bakina, Judicial Wisdom: An Introductory Empirical Account, 52 Ct. Rev. 72, 74 (2016).

⁵¹See, e.g., Va. Code. Ann. § 63.2-1205 (LexisNexis, LEXIS through 2026 Spec. Sess. I).

⁵²Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 45 n.13 (1981) (Blackmun, J., dissenting).

⁵³SeeH. Jefferson Powell, Constitutional Conscience: The Moral Dimension of Judicial Decision 41 (2008) (“[I]f you are judging [c]ourt cases . . . you can’t pursue a goal if doing so would take you beyond the rules that define what judging such cases is. Not because you don’t care about moral obligations such as justice, but precisely because you do care. The obligation to remain within the role is itself a moral obligation.”).

⁵⁴Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 21 (2023).

⁵⁵Va. Broad. Corp. v. Commonwealth, 749 S.E.2d 313, 318–19 (Va. 2013) (quoting Ayres v. Harleysville Mut. Cas. Co., 2 S.E.2d 303, 307 (Va. 1939)).

⁵⁶See Saul Levmore, Ambiguous Statutes, 77 U. Chi. L. Rev. 1073, 1077 (2010) (“Ambiguity can be intentional or unintentional; it can derive from misunderstandings about language, from simple mistakes, from a failure to plan ahead, or from the impossibility of seeing very far ahead.”).

⁵⁷See Steven Wisotsky, How to Interpret Statutes—Or Not: Plain Meaning and Other Phantoms, J. App. Prac. & Process 321, 324 (2009) (“[S]uperficially clear statutory language may upon concentrated analysis prove ambiguous . . . .”).

⁵⁸Consult, Merriam-Webster, https://www.merriam-webster.com/dictionary/consult (last visited August 7, 2026) (on file with the Regent Law Review Online).

⁵⁹Id.

⁶⁰See id. (listing “consultation” as the noun form of “consult”); Consultation, Merriam-Webster, https://www.merriam-webster.com/dictionary/consultation (last visited August 7, 2026) (on file with the Regent Law Review Online).

⁶¹Consultation, Black’s Law Dictionary (12th ed. 2024).

⁶²See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (“The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”).

⁶³King v. Burwell, 576 U.S. 473, 486 (2015) (quoting Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290 (2010)).

⁶⁴Va. Code Ann. § 16.1-282.1(C) (LexisNexis, LEXIS through 2026 Spec. Sess. I).

⁶⁵See Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 257 (2010) (“The existence of ambiguity creates the need for interpretation . . . .”).

⁶⁶See supra Part I; see generally Model Code of Jud. Conduct pmbl. [1] (A.B.A. 2020) (“The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society.”).

⁶⁷Francis J. Mootz III, Judging Well, 11 Wash. U. Juris. Rev. 1, 4 (2018).

⁶⁸Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, 45 Vand. L. Rev. 647, 650–51 (1992) (“[I]n a wide array of situations, common sense or practical wisdom will inform judges; decisions about which canon to employ in a given context.”).

⁶⁹Robert John Araujo, Method in Interpretation: Practical Wisdom and the Search for Meaning in Public Legal Texts, 68 Miss. L.J. 225, 367 (1998) (“[I]t is through interpretation of the law that we come to know what is it that the law gives or requires of us as citizens and companions in society.”).

⁷⁰SeeValerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends, at Summary (2023) (“When courts render decisions on the meaning of statutes, the prevailing view is that a judge’s task is not to make the law, but rather to interpret the law made by Congress.”).

⁷¹Aharon Barak, Purposive Interpretation in Law 3 (Sari Bashi trans., 2005) (“Legal interpretation is a rational activity that gives meaning to a legal text. The requirement of rationality is key–a coin toss is not interpretive activity. Interpretation is an intellectual activity, concerned with determining the normative message that arises from the text.”).

⁷²Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

⁷³Jason J. Czarnezki & William K. Ford, The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 Md. L. Rev. 841, 842 (2006) (“Judging, however, may be about both ideological and interpretive commitments. What judges consider preferable, proper, and feasible is likely based on their views of good policy and good legal interpretation.”).

⁷⁴See generally Lawrence B. Solum, A Tournament of Virtue, 32 Fla. St. U. L. Rev. 1365, 1385 (2005) (“A judge with the virtue of practical wisdom, a phronimos, has the ability to perceive the salient features of particular situations. . . . [W]e can say that a sense of justice requires ‘legal vision,’ the ability to size up a case and discern which aspects are legally important.”).

⁷⁵See infra Section V.A.1.

⁷⁶See infra Section V.A.2.

⁷⁷See Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. Pa. L. Rev. 117, 118 (2009) (“For decades, scholars have divided over how best to interpret statutes, particularly when statutory text pulls in one direction and intent or purpose in another.”).

⁷⁸Stanley v. City of Sanford, 606 U.S. 46, 57–58 (2025).

⁷⁹Id. (“Failing all else, Ms. Stanley and the dissent ask us to look beyond text and precedent. . . . Finding ‘pure textualism’ insufficiently pliable to secure the result they seek, they invoke the statute’s ‘primary purpose’ and ‘legislative history.’ . . . But this submission falters, too. For one thing, and as this Court has ‘emphasized many times,’ what Congress (possibly) expected matters much less than what it (certainly) enacted.”).

⁸⁰Id. at 97 n.12 (Jackson, J., dissenting).

⁸¹See Mark C. Modak-Truran, Corrective Justice and the Revival of Judicial Virtue, 12 Yale J.L. & Humanities 249, 296 (2000) (“According to the teleological account of corrective justice, corrective justice is a moral virtue of the judge that allows the judge to know what the position of equality (legal rights) should be in every case. . . . [T]he teleological conception maintains that judging requires moral virtue rather than technical, philosophical, or legal expertise.”).

⁸²See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989) (“Judges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will.”).

⁸³SeeRichard Posner, Divergent Paths: The Academy and the Judiciary ix–x (2016) (criticizing the current judicial culture’s “lack of curiosity and imagination”).

⁸⁴See Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. Pa. L. Rev. 1639, 1640–41 (2003) (“[C]ollegiality mitigates judges’ ideological preferences and enables us to find common ground and reach better decisions.”).

⁸⁵SeeKronman, supra note 26, at 41 (“Aristotle stresses that deliberation is not an activity at which everyone does equally well . . . . Those who deliberate well, Aristotle says, we call practically wise, practical wisdom being the excellence appropriate to the activity of deliberation.”).

⁸⁶R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us about a Prosecutor’s Ethical Duty to “Seek Justice”, 82 Notre Dame L. Rev. 635, 649 (2006).

⁸⁷Robert A. Katzmann, Judging Statutes 31 (2014).

⁸⁸Id.

⁸⁹See John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 71 (2006) (“Traditionally, the Court’s ‘purposivism’ rested on the following intuitions: In our constitutional system, federal courts act as faithful agents of Congress; accordingly, they must ascertain and enforce Congress’s commands as accurately as possible.”).

⁹⁰John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 3–4 (2001) (“The Court’s ‘textualists’ . . . give precedence to semantic context; judges must enforce the conventional meaning of a clear text, even if it does not appear to make perfect sense of the statute’s overall policy.”).

⁹¹See Scalia, supra note 82, at 1185 (“But when one does not have a solid textual anchor or an established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation.”).

⁹²Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).

⁹³See Siegel, supra note 77 (“[Textualists] believe that the goal of statutory interpretation is to identify the objective meaning of statutory text without regard to what any legislator intended that text to mean.”).

⁹⁴See, e.g., Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1278 (2020) (“Justices commonly considered textualist or textualist leaning at times engage in a form of backdoor purposivism, or at least speculation about legislative intent, that looks surprisingly similar to the intent speculation inherent to traditional purposivism.”).

⁹⁵Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 265–66 (2020).

⁹⁶See, e.g., Milner v. Dep’t of the Navy, 562 U.S. 562, 572 (2011) (“Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambiguous text.”).

⁹⁷Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 40–41 (2023).

⁹⁸H.B. 1604, 2017 Gen. Assemb., Reg. Sess. (Va. 2017) (as introduced, Jan. 11, 2017).

⁹⁹Id.

¹⁰⁰Id.

¹⁰¹See 2017 Session: HB1604, Va. Legis. Info. Sys.: Bills & Resols., https://lis.virginia.gov/bill-details/20171/HB1604 (last visited July 27, 2026) (on file with the Regent Law Review Online); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 220 (1983) (noting it would “appear improper for [the Supreme Court] to give a reading to [an] Act that Congress considered and rejected” and weight must be given to the changes Congress did or did not make).

¹⁰²See 2017 Session: HB1604, supra note 101.

¹⁰³Compare H.B. 1604, 2017 Gen. Assemb., Reg. Sess. (Va. 2017) (as introduced, Jan. 11, 2017), with H.B. 1604, 2017 Gen. Assemb., Reg. Sess. (Va. 2017) (as proposed by the H. Comm. for Courts of Justice, Jan. 20, 2017).

¹⁰⁴Broadnax v. Commonwealth, 485 S.E.2d 666, 669 (Va. Ct. App. 1997).

¹⁰⁵2017 Session: HB1604, supra note 101.

¹⁰⁶Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110–351, 122 Stat. 3949.

¹⁰⁷42 U.S.C. § 675(5)(C)(iii).

¹⁰⁸See 2017 Session: HB1604, supra note 101.

¹⁰⁹Id.

¹¹⁰See, e.g., 42 U.S.C. § 675(5)(C)(iii). If there is an in “an age-appropriate manner” for consultations, logically there are consultations that may not be age-appropriate for consulting children. See id.

¹¹¹Supra Part II.

¹¹²See supra Section III.B; 42 U.S.C. § 675(5)(C)(iii).

¹¹³Czarnezki & Ford, supra note 73, at 847–48 (“Political scientists speak of two basic models of judicial behavior: the legal model and the attitudinal model. . . . [T]he legal model refers to traditional interpretive approaches familiar to lawyers, such as the language of legal texts . . . precedent, canons of construction, the intent of the framers, and legislative history. . . . [This] legal model assumes an almost mechanical form of jurisprudence.”).

¹¹⁴SeeAntonin Scalia & Bryan A. Garner, Reading Law 51 (2012) (writing that canons of construction “are not ‘rules’ of interpretation in any strict sense but presumptions about what an intelligently produced text conveys”).

¹¹⁵Ron Beal, The Art of Statutory Construction, 64 Baylor L. Rev. 342, 343 (2012).

¹¹⁶Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2144 (2016) (book review).

¹¹⁷Id.

¹¹⁸Id.

¹¹⁹Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 29 (2023).

¹²⁰Kavanaugh, supra note 116, at 2159–60.

¹²¹Beal, supra note 115, at 378–79.

¹²²Smith v. United States, 508 U.S. 223, 228 (1993).

¹²³SeeVa. Code Ann. § 16.1-282.1(C) (LexisNexis, LEXIS through 2026 Spec. Sess. I).

¹²⁴See id. (LEXIS); Merriam-Webster, supra note 58.

¹²⁵See supra Part II.

¹²⁶See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171 (2016) (“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.”).

¹²⁷Scalia & Garner, supra note 114, at 112, 114.

¹²⁸§ 16.1-282.1(C) (LEXIS).

¹²⁹Scalia & Garner, supra note 114, at 170.

¹³⁰IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005).

¹³¹Kavanaugh, supra note 116, at 2162.

¹³²§§ 16.1-69.32, -69.35:4, -69.51, -69.54, -69.58, -233, -234, -235, -236, -236.1, -240, -241, -266, -282.1, -283.3, -293, -293.1, -309.3, -316, -323, -345, -361 (LEXIS).

¹³³Id. § 16.1-266(C)(3) (LEXIS).

¹³⁴Id. § 16.1-241(W) (LEXIS).

¹³⁵See, e.g., id. § 16.1-88.2(2) (LEXIS).

¹³⁶Id. (LEXIS).

¹³⁷Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 826–27, 833 (2017).

¹³⁸Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 109–10 (2010).

¹³⁹Glen Staszewski, Avoiding Absurdity, 81 Ind. L.J. 1001, 1002 (2006).

¹⁴⁰458 U.S. 564, 575 (1982).

¹⁴¹Crooks v. Harrelson, 282 U.S. 55, 60 (1930).

¹⁴²See 2017 Session: HB1604, supra note 101.

¹⁴³U.S. Dep’t of Health & Hum. Servs.: Children’s Bureau, Child Welfare Policy Manual § 8.3C.2c.4 (2007), https://cwpm.acf.gov/ (on file with the Regent Law Review Online).

¹⁴⁴Id.

¹⁴⁵Id.

¹⁴⁶Id.

¹⁴⁷See David Crump, Child Victim Testimony, Psychological Trauma, and the Confrontation Clause: What Can the Scientific Literature Tell Us?, 8 St. John’s J. Legal Comment. 83, 104 (1992) ([T]he child’s potential exposure to trauma may make her mental health a hostage that prevents the prosecution from going forward at all.”).

¹⁴⁸See Barry Nurcombe, The Child as Witness: Competency and Credibility, 25 J. Am. Acad. Child Psych. 473, 479 (1986) (“The possibility of parental indoctrination should . . . be considered in all cases involving disputed custody or visitation rights.”).

¹⁴⁹See generally Lisa Carol Rogers, Child Custody: The Judicial Interview of the Child, 47 La. L. Rev. 559 (1987) (suggesting methods for eliciting accurate information from a child during a judicial interview).

¹⁵⁰Scalia & Garner, supra note 114, at 180.

¹⁵¹Id.

¹⁵²521 U.S. 320, 336 (1997).

¹⁵³Va. Code Ann. § 16.1-227 (LexisNexis, LEXIS through 2026 Reg. Sess. I).

¹⁵⁴See William W. Patton, Viewing Child Witnesses Through a Child and Adolescent Psychiatric Lens, 16 Widener L. Rev. 369, 376–77 (2010).

¹⁵⁵Christopher Allan Jeffreys, The Role of Mental Health Professionals in Child Custody Resolution, 15 Hofstra L. Rev. 115, 129 (1986).

¹⁵⁶Marsh et al., supra note 28, at 2.

¹⁵⁷Jeffreys, supra note 155, at 129.

¹⁵⁸Robert H. Pantell, The Child Witness in the Courtroom, 139 Pediatrics 1, 2 (2017).

¹⁵⁹Maryland v. Craig, 497 U.S. 836, 855 (1990) (quoting Ginsburg v. New York, 390 U.S. 629, 640 (1968) (citation omitted)).

¹⁶⁰See Marsh et al., supra note 28, at 10 (“Courts play an important role in helping ensure injured parties experience safety . . . [which helps] promote healing and cultivate resilience among those injured or experiencing traumatic stress.”).

¹⁶¹Barbara A. Atwood, The Child’s Voice in Custody Litigation: An Empirical Survey and Suggestions for Reform, 45 Ariz. L. Rev. 629, 673 (2003).

¹⁶²See generally Michael L. Lindsey, Ethical Issues in Interviewing, Counseling, and the Use of Psychological Data with Child and Adolescent Clients, 64 Fordham L. Rev. 2035 (explaining the importance of lawyers developing strong interviewing and counseling skills with preparation and professional guidance from mental health experts to enhance interactions with child clients and help child clients feel safer during interactions and remember and volunteer accurate information).

¹⁶³See generally Andrew Schepard, Joan Atwood & Stephen W. Schlissel, Preventing Trauma for the Children of Divorce Through Education and Professional Responsibility, 16 Nova L. Rev. 767 (1992) (describing the importance of involvement from judges, lawyers, mental health professionals, parents, and others involved in the litigation process in developing a system that limits potentially traumatic effects of divorce and custody on children).

¹⁶⁴Laureen A. D’Ambra, The Importance of Conducting In-Camera Testimony of Child Witnesses in Court Proceedings: A Comparative Legal Analysis of Relevant Domestic Relations, Juvenile Justice and Criminal Cases, 19 Roger Williams U. L. Rev. 323, 324 (2014).

¹⁶⁵Fiona E. Raitt, Hearing Children in Family Law Proceedings: Can Judges Make a Difference?, 19 Child & Fam. L. Q. 204, 224 (2007).

¹⁶⁶See Rogers, supra note 149, at 585 (suggesting that before speaking to a child, “a judge should familiarize himself with the approaches used by behavioral scientists to elicit accurate information from [the child]”).

¹⁶⁷See D’Ambra, supra note 164, at 355-56.

¹⁶⁸Nancy Walker Perry & Bradley D. McAuliff, The Use of Videotaped Child Testimony: Public Policy Implications, 7 Notre Dame J.L. Ethics & Pub. Pol’y 387, 420 (1993).

¹⁶⁹See Richard V. Thomas, The Problem of the Child Witness, 10 Wyo. L.J. 214, 221 (1956) (noting that a child psychologist is useful “in preparing for the examination of an important child witness, since emotional factors or psychological blocks induced by shyness or apprehension may render the child quite unresponsive in the courtroom”).

¹⁷⁰See Frederica K. Lombard, Judicial Interviewing of Children in Custody Cases: An Empirical and Analytical Study, 17 U.C. Davis L. Rev. 807, 839, 842 (1984).

¹⁷¹See Atwood, supra note 161, at 665.

¹⁷²Laurie Shanks, Evaluating Children’s Competency to Testify: Developing a Rational Method to Assess a Young Child’s Capacity to Offer Reliable Testimony in Cases Alleging Child Sex Abuse, 58 Clev. St. L. Rev. 575, 600 (2010).

¹⁷³See Lombard, supra note 170, at 843.

Benjamin RigneyNovember 4, 2026