Virginia Code

Va. Code Ann. § 16.1-266 (2026)

Appointment of counsel and guardian ad litem

✓ current as of May 2026

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A. Prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is the subject of an entrustment agreement or a petition seeking termination of residual parental rights or who is otherwise before the court pursuant to subdivision A 4 of § 16.1-241 or § 63.2-1230, the court shall appoint a discreet and competent attorney-at-law as guardian ad litem to represent the child pursuant to § 16.1-266.1.

B. Prior to the detention hearing held pursuant to § 16.1-250, the court shall appoint a qualified and competent attorney-at-law to represent the child unless an attorney has been retained and appears on behalf of the child. For the purposes of appointment of counsel for the detention hearing held pursuant to § 16.1-250 only, a child's indigence shall be presumed. Nothing in this subsection shall prohibit a judge from releasing a child from detention prior to appointment of counsel.

C. Subsequent to the detention hearing, if any, and prior to the adjudicatory or transfer hearing by the court of any case involving a child who is alleged to be in need of services, in need of supervision or delinquent, such child and his parent, guardian, legal custodian or other person standing in loco parentis shall be informed by a judge, clerk or probation officer of the child's right to counsel and of the liability of the parent, guardian, legal custodian or other person standing in loco parentis for the costs of such legal services pursuant to § 16.1-267 and be given an opportunity to:

1. Obtain and employ counsel of the child's own choice; or

2. Request that the court appoint counsel, provided that before counsel is appointed or the court continues any appointment previously made pursuant to subsection B, the court shall determine that the child is indigent within the contemplation of the law pursuant to guidelines set forth in § 19.2-159 by requiring the child's parent, guardian, legal custodian or other person standing in loco parentis to complete a statement of indigence substantially in the form provided by § 19.2-159 and a financial statement, and upon determination of indigence the court shall appoint an attorney from the list maintained by the Indigent Defense Commission pursuant to § 19.2-163.01 to represent the child; or

3. Waive the right to representation by an attorney, if the court finds the child and the parent, guardian, legal custodian or other person standing in loco parentis of the child consent, in writing, and such waiver is consistent with the interests of the child. Such written waiver shall be in accordance with law and shall be filed with the court records of the case. A child who is alleged to have committed an offense that would be a felony if committed by an adult, may waive such right only after he consults with an attorney and the court determines that his waiver is free and voluntary. The waiver shall be in writing, signed by both the child and the child's attorney and shall be filed with the court records of the case.

D. A judge, clerk or probation officer shall inform the parent or guardian of his right to counsel prior to the adjudicatory hearing of a petition in which a child is alleged to be abused or neglected or at risk of abuse or neglect as provided in subdivision A 2a of § 16.1-241 and prior to a hearing at which a parent could be subjected to the loss of residual parental rights. In addition, prior to the hearing by the court of any case involving any other adult charged with abuse or neglect of a child, this adult shall be informed of his right to counsel. This adult and the parent or guardian shall be given an opportunity to:

1. Obtain and employ counsel of the parent's, guardian's or other adult's own choice; or

2. If the court determines that the parent, guardian or other adult is indigent within the contemplation of the law pursuant to the guidelines set forth in § 19.2-159, a statement substantially in the form provided by § 19.2-159 and a financial statement shall be executed by such parent, guardian or other adult and the court shall appoint an attorney-at-law to represent him; or

3. Waive the right to representation by an attorney in accordance with the provisions of § 19.2-160.

If the identity or location of a parent or guardian is not reasonably ascertainable or a parent or guardian fails to appear, the court shall consider appointing an attorney-at-law to represent the interests of the absent parent or guardian, and the hearing may be held.

Prior to a hearing at which a child is the subject of an initial foster care plan filed pursuant to § 16.1-281, a foster care review hearing pursuant to § 16.1-282 and a permanency planning hearing pursuant to § 16.1-282.1, the court shall consider appointing counsel to represent the child's parent or guardian.

E. In those cases described in subsections A, B, C and D, which in the discretion of the court require counsel or a guardian ad litem to represent the child or children or the parent or guardian or other adult party in addition to the representation provided in those subsections, a discreet and competent attorney-at-law may be appointed by the court as counsel or a guardian ad litem.

F. In all other cases which in the discretion of the court require counsel or a guardian ad litem, or both, to represent the child or children or the parent or guardian, discreet and competent attorneys-at-law may be appointed by the court. However, in cases where the custody of a child or children is the subject of controversy or requires determination and each of the parents or other persons claiming a right to custody is represented by counsel, the court shall not appoint counsel or a guardian ad litem to represent the interests of the child or children unless the court finds, at any stage in the proceedings in a specific case, that the interests of the child or children are not otherwise adequately represented.

G. Any state or local agency, department, authority or institution and any school, hospital, physician or other health or mental health care provider shall permit a guardian ad litem or counsel for the child appointed pursuant to this section to inspect and copy, without the consent of the child or his parents, any records relating to the child whom the guardian or counsel represents upon presentation by him of a copy of the court order appointing him or a court order specifically allowing him such access. Upon request therefor by the guardian ad litem or counsel for the child made at least 72 hours in advance, a mental health care provider shall make himself available to conduct a review and interpretation of the child's treatment records which are specifically related to the investigation. Such a request may be made in lieu of or in addition to inspection and copying of the records.

Code 1950, §§ 16.1-173, 63.1-248.12; 1956, c. 555; 1966, c. 709; 1968, c. 581; 1970, c. 87; 1973, c. 440; 1974, c. 513; 1975, cc. 341, 465, 559; 1977, c. 559; 1980, c. 572; 1982, c. 451; 1984, c. 709; 1985, c. 260; 1987, c. 632; 1994, c. 36; 1997, c. 790; 2002, c. 687; 2003, c. 98; 2004, cc. 66, 437, 884, 921, 1014; 2005, c. 427.

Notes of Decisions

Cited in 53 cases (4 in the last 5 years), 1986–2025 · leading case: Yopp v. Hodges, 598 S.E.2d 760 (Va. Ct. App. 2004).

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Yopp v. Hodges, 598 S.E.2d 760 (Va. Ct. App. 2004). · cites it 52× “1-266(E) allows the trial court to appoint a guardian ad litem "[i]n all other cases which in the discretion of the court require" such an appointment.”

Patricia Tackett v. Arlington Cnty. Dep't of Human Servs., 746 S.E.2d 509 (Va. Ct. App. 2013). · cites it 8× “Code § 16.1-266(A) provides that, Prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is the subject of .”

Verrocchio v. Verrocchio, 429 S.E.2d 482 (Va. Ct. App. 1993). · cites it 8× “1-266(D) (granting the juvenile and domestic relations district court discretion to appoint a guardian ad litem for the child in contested custody cases, with the proviso that, if both *320 sides are represented by counsel, the court must first make a determination that the best…”

Grogg v. Commonwealth, 371 S.E.2d 549 (Va. Ct. App. 1988). · cites it 6× “Code § 16.1-266, entitled “Appointment of Counsel,” provides that a child and his parent, guardian, legal custodian, or other person standing in loco parentis shall be informed of the child’s right to counsel.”

Watkins v. Fairfax Cnty. Dep't of Fam. Servs., 595 S.E.2d 19 (Va. Ct. App. 2004). · cites it 4× “Indeed, the guardian ad litem is clearly an indispensable party in termination cases because the statute governing the appointment of guardians ad litem in termination proceedings, Code § 16.1-266, mandates their appointment in such cases.”

Stanley v. Fairfax Cnty. Dep't of Soc. Servs., 395 S.E.2d 199 (Va. Ct. App. 1990). · cites it 6× “Pursuant to Code § 16.1-266, the guardian ad litem is required to represent the children’s best interests in any determination of residual parental rights.”

Breit v. Mason, 718 S.E.2d 482 (Va. Ct. App. 2011). · cites it 6× “Weinberg (“Weinberg”) as the child’s guardian ad litem (“GAL”), asserting that Weinberg was not qualified to act as GAL pursuant to Code §§ 16.1-266 and 8.01-9, 16 failed to make any inquiry with Breit *339 about his relationship with L.”

Angel v. Com., 704 S.E.2d 386 (Va. 2011). · cites it 2× “" Code § 16.1-266(C). There is no question that since Cradle the General Assembly has specifically provided juveniles certain procedural rights.”

Norfolk Div. of Soc. Servs. v. Unknown Father, 345 S.E.2d 533 (Va. Ct. App. 1986). · cites it 4× “Pursuant to Code § 16.1-266 the attorney so appointed shall represent the parent at any hearing held and at all other stages of the proceedings until relieved or replaced in a manner provided by law.”

Hughes v. York Cnty. Dep't of Soc. Servs., 548 S.E.2d 237 (Va. Ct. App. 2001). · cites it 4× “2d 482, 486 (1993) (“Code § 16.1-266 ‘recognizes that the substantive rights and interests of the child are often separate and distinct from those of the other parties to the litigation .”

Fredericksburg Dep't of Soc. Servs. v. Brown, 533 S.E.2d 12 (Va. Ct. App. 2000). · cites it 8× “DSS’s petition was denied on the ground that Code § 16.1-266(C) required the appointment of counsel for the parents prior to the hearing held in the Fredericksburg Juvenile and Domestic Relations District (“J & DR”) Court in which the J & DR court approved entrustment agreements…”

McNair v. Commonwealth, 561 S.E.2d 26 (Va. Ct. App. 2002). · cites it 2× “2-157 provides as follows: Except as may otherwise be provided in §§ 16.1-266 through 16.1-268, whenever a person charged with a criminal offense the penalty for which may be death or confinement in the state correctional facility or jail, including charges for revocation of…”

Show all 53 citing cases →

— Va. Code Ann. § 16.1-266(A) — 12 cases

Yopp v. Hodges, 598 S.E.2d 760 (Va. Ct. App. 2004). “1-266(E) allows the trial court to appoint a guardian ad litem "[i]n all other cases which in the discretion of the court require" such an appointment.”

Patricia Tackett v. Arlington Cnty. Dep't of Human Servs., 746 S.E.2d 509 (Va. Ct. App. 2013). “Code § 16.1-266(A) provides that, Prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is the subject of .”

Watkins v. Fairfax Cnty. Dep't of Fam. Servs., 595 S.E.2d 19 (Va. Ct. App. 2004). “Indeed, the guardian ad litem is clearly an indispensable party in termination cases because the statute governing the appointment of guardians ad litem in termination proceedings, Code § 16.1-266, mandates their appointment in such cases.”

Verrocchio v. Verrocchio, 429 S.E.2d 482 (Va. Ct. App. 1993). “1-266(D) (granting the juvenile and domestic relations district court discretion to appoint a guardian ad litem for the child in contested custody cases, with the proviso that, if both *320 sides are represented by counsel, the court must first make a determination that the best…”

Stanley v. Fairfax Cnty. Dep't of Soc. Servs., 405 S.E.2d 621 (Va. 1991).

— Va. Code Ann. § 16.1-266(B) — 3 cases

Wilson v. Commonwealth, 477 S.E.2d 7 (Va. Ct. App. 1996).

Oxenham v. Martin, 501 S.E.2d 765 (Va. 1998).

Commonwealth v. Malvo, 63 Va. Cir. 22 (Fairfax Cir. Ct. 2003).

— Va. Code Ann. § 16.1-266(B)(3) — 2 cases

Grogg v. Commonwealth, 371 S.E.2d 549 (Va. Ct. App. 1988). “Code § 16.1-266, entitled “Appointment of Counsel,” provides that a child and his parent, guardian, legal custodian, or other person standing in loco parentis shall be informed of the child’s right to counsel.”

Oxenham v. Martin, 501 S.E.2d 765 (Va. 1998).

— Va. Code Ann. § 16.1-266(C) — 6 cases

Angel v. Com., 704 S.E.2d 386 (Va. 2011). “" Code § 16.1-266(C). There is no question that since Cradle the General Assembly has specifically provided juveniles certain procedural rights.”

Fredericksburg Dep't of Soc. Servs. v. Brown, 533 S.E.2d 12 (Va. Ct. App. 2000). “DSS’s petition was denied on the ground that Code § 16.1-266(C) required the appointment of counsel for the parents prior to the hearing held in the Fredericksburg Juvenile and Domestic Relations District (“J & DR”) Court in which the J & DR court approved entrustment agreements…”

Fredericksburg DSS v. Clyde Brown & Joyce Williams (Va. Ct. App. 2000).

Clyde Brown v. Fredericksburg DSS (Va. Ct. App. 2000).

Rosa G. Harris v. Katherine A. Boxler (Va. Ct. App. 2003).

— Va. Code Ann. § 16.1-266(D) — 10 cases

Norfolk Div. of Soc. Servs. v. Unknown Father, 345 S.E.2d 533 (Va. Ct. App. 1986). “Pursuant to Code § 16.1-266 the attorney so appointed shall represent the parent at any hearing held and at all other stages of the proceedings until relieved or replaced in a manner provided by law.”

Rosa G. Harris v. Katherine A. Boxler (Va. Ct. App. 2003).

Helen Brazell v. Fairfax Cnty. Dep't of Fam. Servs. (Va. Ct. App. 2008).

— Va. Code Ann. § 16.1-266(D)(2) — 1 case

Blakeney v. McRee, 188 So. 3d 1154 (Miss. 2016).

— Va. Code Ann. § 16.1-266(E) — 5 cases

Delores O'Brien Heffernan v. Arlington Cnty. Dep't of Human Servs. (Va. Ct. App. 2013).

Delores O'Brien Heffernan v. Arlington Cnty. Dep't of Human (Va. Ct. App. 2013).

Kayla S. Scott v. City of Petersburg Dep't of Soc. Servs. (Va. Ct. App. 2017).

— Va. Code Ann. § 16.1-266(F) — 8 cases

Thomas Fullen Williams v. Maggie Kelly Panter (Va. Ct. App. 2025).

Amanda D. Lewis v. Vincent E. Hyman (Va. Ct. App. 2008).

Selena Gudino v. Dennis Gudino (Va. Ct. App. 2011).

Hart v. Hart, 87 Va. Cir. 122 (Chesapeake Cir. Ct. 2013).

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