Present: All the Justices 

THE HONORABLE A. ELISABETH OXENHAM, 

JUDGE OF THE JUVENILE AND DOMESTIC 

RELATIONS DISTRICT COURT OF HENRICO COUNTY 

v. Record No. 980437 OPINION BY JUSTICE CYNTHIA D. KINSER 

 June 5, 1998 

J.S.M., ETC., ET AL. 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James E. Kulp, Judge 

 On January 9, 1998, the Circuit Court of Henrico 

County issued a writ of prohibition against the Honorable 

A. Elisabeth Oxenham, Judge of the Juvenile and Domestic 

Relations District Court of Henrico County (Judge Oxenham). 

Under the terms of the circuit court’s order, Judge Oxenham 

could not prevent Robert H. Martin (Robert) from retaining 

an attorney to represent his minor son on a petition 

charging assault and battery filed by the child’s mother. 

The dispositive issue in this appeal is whether Judge 

Oxenham had jurisdiction to adjudicate the disposition of 

the petition and, in doing so, had authority to appoint 

counsel to represent the child. We conclude that she had 

both the jurisdiction and authority to act and will, 

therefore, reverse the judgment of the circuit court. 

I. 

On August 18, 1997, Olivia Lee Ligon Martin (Olivia) 
filed a petition against J.S.M.,1 her ten-year-old son, 

alleging that he committed assault and battery against her 

on July 2, 1997, in violation of Code § 18.2-57.2. At the 

initial hearing on the petition before Judge Oxenham, a 

dispute arose between the parents regarding who should 

represent J.S.M. on the pending assault and battery charge. 

At that time, J.S.M.’s parents were involved in divorce and 

custody proceedings. Olivia had sole custody of J.S.M., 

and Robert’s visitation rights with J.S.M. had been 

temporarily suspended. Robert stated that he had retained 

the counsel representing him in the divorce proceedings to 

defend J.S.M. Olivia, however, wanted the attorney 

representing her in the divorce case to serve as her son’s 

counsel or, in the alternative, to have the court appoint 

an attorney for J.S.M.2 The issue of legal representation 

for J.S.M. remained unresolved at the conclusion of the 

hearing. 

On October 31, 1997, J.S.M., individually and by his 

next friend, Robert, filed a motion requesting Judge 

Oxenham to recuse herself from hearing the pending petition 

 1

 Full name of the minor deleted by this Court. 

2

 Olivia’s attorney later wrote Judge Oxenham and 

stated that due to his involvement in the pending divorce 

proceedings between Robert and Olivia, he could not 

represent J.S.M. 

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against J.S.M. or, in the alternative, to permit Robert to 

choose counsel for J.S.M. In a November 6, 1997 letter 

opinion, Judge Oxenham denied the motion and appointed 

defense counsel and a guardian ad litem for J.S.M. Judge 

Oxenham based her decision on the unusual degree of 

animosity between J.S.M.’s parents and on Olivia's request 

for the court to appoint an attorney to represent J.S.M. 

since she could not afford to retain counsel for him. 

Judge Oxenham concluded that it was in J.S.M.’s best 

interests to have a court-appointed defense attorney as 

well as a guardian ad litem. 

In response to Judge Oxenham’s decision, Robert and 

J.S.M. filed a petition for a writ of mandamus in the 

circuit court.3 The petition requested, inter alia, the 

court to compel Judge Oxenham to allow Robert to select his 

son’s counsel. The circuit court held a hearing on the 

matter during which J.S.M.’s guardian ad litem stated that 

he had not asked J.S.M. whether he preferred to have a 

court-appointed attorney or private counsel. However, the 

guardian ad litem stated that J.S.M. did not “express . . . 

to me an opposition” to his court-appointed attorney and 

 3

 The petition for a writ of mandamus was filed by 

Robert, individually, and by J.S.M., individually and by 

his next friend Robert. 

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“appeared to be pleased” with his current legal 

representation. At the conclusion of the hearing, the 

court stated that it “[was] going to treat the petition for 

mandamus as a petition for writ of prohibition.” The court 

then granted the writ of prohibition. Judge Oxenham filed 

a motion to reconsider, which the circuit court denied. 

Judge Oxenham appeals. 

II. 

 The law concerning writs of prohibition is wellestablished and provides the framework for deciding this 

case. “A writ of prohibition is an extraordinary remedy 

employed ‘to redress the grievance growing out of an 

encroachment of jurisdiction.’” Elliott v. Great Atlantic 

Management Co., Inc., 236 Va. 334, 338, 374 S.E.2d 27, 29 

(1988) (quoting James v. Stokes, 77 Va. 225, 229 (1883)). 

In Grief v. Kegley, 115 Va. 552, 79 S.E. 1062 (1913), we 

stated the well-settled principle that: 

[T]he writ of prohibition does not lie to correct 

error, but to prevent the exercise of the jurisdiction 

of the court by the judge to whom it is directed, 

either where he has no jurisdiction at all, or is 

exceeding his jurisdiction. If the court or judge has 

jurisdiction to enter any order in the proceeding 

sought to be prohibited, the writ does not lie. 

Id. at 557, 79 S.E. at 1064; see also Elliott, 236 Va. at 

338, 374 S.E.2d at 29; In re Department of Corrections, 222 

Va. 454, 461, 281 S.E.2d 857, 861 (1981); County School Bd. 

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of Tazewell County v. Snead, 198 Va. 100, 107, 92 S.E.2d 

497, 503 (1956). 

Jurisdiction is “‘the power to adjudicate a case upon 

the merits and dispose of it as justice may require.’” Id.

at 104-05, 92 S.E.2d at 501 (quoting Southern Sand and 

Gravel Co., Inc. v. Massaponax Sand and Gravel Corp., 145 

Va. 317, 332, 133 S.E. 812, 816 (1926) (Burks, J., 

concurring)); see also Black’s Law Dictionary 853 (6th ed. 

1990). Accordingly, a writ of prohibition does not lie 

against Judge Oxenham if she had jurisdiction to adjudicate 

the disposition of the petition charging J.S.M. with 

assault and battery, and in doing so, had authority to 

appoint counsel to represent him. We find that Judge 

Oxenham acted within her jurisdiction and that the circuit 

court, therefore, erred in issuing the writ of prohibition. 

 Under Code § 16.1-241(J), the juvenile and domestic 

relations district court has exclusive original 

jurisdiction over “[a]ll offenses in which one family or 

household member is charged with an offense in which 

another family or household member is the victim . . . .” 

The court also has exclusive original jurisdiction 

regarding the disposition of a child who is alleged to be 

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delinquent.4 Code § 16.1-241(A)(1). In regard to the 

appointment of counsel for a child charged with a 

delinquent act, Code § 16.1-266(B) provides as follows: 

Prior to the detention review hearing or the 

adjudicatory or transfer hearing by the court of 

any case involving a child who is alleged to be 

. . . delinquent, such child and his or her 

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 be given an 

opportunity to: 

 1. Obtain and employ counsel of the child’s own 

choice . . . .5

Finally, subsection D of Code § 16.1-266 provides that 

“[i]n all other cases which in the discretion of the court 

require counsel or a guardian ad litem to represent the 

interests of the child . . . , a discreet and competent 

attorney-at-law may be appointed by the court.” 

 As a judge of the juvenile and domestic relations 

district court, Judge Oxenham clearly had jurisdiction 

under Code § 16.1-241 to adjudicate the disposition of the 

petition charging J.S.M. with assault and battery. In 

 4

 A “delinquent act” means “an act designated a crime 

under the law of this Commonwealth . . . .” Code § 16.1-

228. 

5

 Subsection B(2) of Code § 16.1-266 provides that if 

a child is indigent, a statement of indigence and a 

financial statement shall be filed, and the court shall 

appoint an attorney to represent the child. A third 

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doing so, Judge Oxenham also had authority under Code 

§ 16.1-266 to appoint counsel to represent J.S.M. 

Exercising the discretion granted her in Code § 16.1-266, 

Judge Oxenham correctly concluded that J.S.M.’s age as well 

as the open animosity between his parents prevented J.S.M. 

from choosing his own counsel. At that time, J.S.M.'s 

parents were still embroiled in divorce and custody 

proceedings, and Robert's visitation rights had been 

temporarily suspended. Furthermore, J.S.M.’s parents could 

not agree on an attorney to represent their son. Given 

these ongoing conflicts, Judge Oxenham determined that it 

was in J.S.M.'s best interests to be represented by an 

attorney who was not involved in the legal proceedings 

between his parents. Cf. Stanley v. Fairfax Co. Dep’t of 

Soc. Services, 10 Va. App. 596, 601, 395 S.E.2d 199, 202 

(1990), aff’d, 242 Va. 60, 405 S.E.2d 621 (1991) 

(recognizing that rights of child are often separate and 

distinct from those of other parties to litigation and are 

best protected by independent counsel). 

 Nevertheless, Robert and J.S.M. argue that Judge 

Oxenham did not follow the necessary procedural steps for 

appointing counsel under Code § 16.1-266 and thus violated 

_________________ 

alternative is waiver of the right to be represented by an 

attorney. Code § 16.1-266(B)(3). 

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J.S.M.'s Sixth Amendment right to counsel guaranteed by the 

United States Constitution. They contend that Judge 

Oxenham should not have imposed her choice of counsel on 

J.S.M. without first making an actual finding, after notice 

and hearing, that a conflict exists between J.S.M. and his 

father and that J.S.M. is incapable of choosing his own 

attorney. In other words, they assert that Judge Oxenham 

had to give J.S.M. and his father the opportunity to obtain 

and employ counsel of J.S.M.’s own choice before she could 

appoint an attorney for J.S.M. Thus, according to Robert 

and J.S.M., Judge Oxenham lost whatever jurisdiction she 

initially had by preempting J.S.M.’s right to select his 

attorney. 

 We disagree with their argument and note that the 

cases upon which Robert and J.S.M. rely are habeas corpus 

cases in which we addressed the statutory requirement 

regarding the appointment of a guardian ad litem for a 

child who appears in court without representation by either 

a parent or an attorney. See Pruitt v. Peyton, 209 Va. 

532, 535, 165 S.E.2d 288, 290 (1969); Gogley v. Peyton, 208 

Va. 679, 682, 160 S.E.2d 746, 748 (1968); Gregory v. 

Peyton, 208 Va. 157, 160, 156 S.E.2d 624, 625-26 (1967). 

In each of these cases, we held that the juvenile court's 

failure to appoint a guardian ad litem for the child 

8
rendered the subsequent proceedings or convictions void. 

Those cases, however, are not relevant to this appeal since 

Judge Oxenham did not fail to appoint an attorney to 

represent J.S.M. Further, if she omitted any procedural 

step required by Code § 16.1-266(B) regarding the 

appointment of counsel for a child charged with committing 

a delinquent act, such an omission was merely a procedural 

error and did not result in a loss of jurisdiction. A writ 

of prohibition does not lie to correct errors. Grief, 115 

Va. at 557, 79 S.E. at 1064. 

For these reasons, we will reverse the judgment of the 

circuit court and dismiss the writ of prohibition. 

Reversed and dismissed.

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