Virginia Family Law Appeals

Armstrong v. Hoover: JOINT CUSTODY AND CHOICE OF ELEMENTARY SCHOOLS.

Do Virginia judges make orders about what grade school a kid should go to when the parents don't agree?  A Fairfax judge did, and the Court of Appeals affirms.  The parents had joint custody, but the judge decided that father was wrong in enrolling the son in a school in his neighborhood when mother's local school got higher test scores, she had the "primary residence," and they had agreed before separation on that school.  The trial judge apparently saw this as a contempt matter for enforcement of the prior custody decree.  But even though the trial judge erred in calling her current school-choice order a "sanction," what she was really doing in Armstrong v. Hoover, unpublished, 20 VLW 1530 (4/11/06) was exercising her modification authority under Code § 20-108, the Court of Appeals says.

Sirney v. Sirney: CHILD CUSTODY – BEST INTERESTS – DECLINE IN VISITATION AND COMMUNICATION – HOMOSEXUAL PARENTS – NEW ADULT RELATIONSHIPS.

When deterioration of a parent-child relationship is cited as the reason for a custody decision pushing that parent even farther out of the child’s life, does it matter if the degradation of the relationship is in significant part attributable to the parent who benefits by the change?  Maybe so, maybe not, as all custody cases are indisputably fact-tied and individually different.  With that said, an unpublished case called Sirney v. Sirney, 22 VLW 1011 (12/27/07) is enormously instructive.  To sum up with brutal brevity, the trial court held that the mother, living on the opposite end of the country, had other distractions and failed to “put her children first.” 

D’Ambrosio v. Fowler: JOINT CUSTODY – TWO-STATE - TERMINATION OF JOINT – RELIGIOUS/EDUCATION REASONS – PRIOR NOTICE OF VISIT – FEE AWARDS – AGAINST UNEMPLOYED PAYOR.

A custody decision that might look like a curious concatenation of bootstrappings to some was upheld by the Court of Appeals.  In D’Ambrosio v. Fowler, unpublished, 22 VLW 1114 (2/19/08), the parties had shared custody, which was apparently a joint-custody arrangement, from the 15th month of the child’s life until the obtaining of “school age” (whatever that means today), even though the mother lived in New York and the father in Virginia.  When the mother said she now wanted primary physical custody, the trial court of course reviewed and gave due regard to all the statutory criteria before holding that the child’s starting a religious school in New York (both the New York and Virginia schools being held equal), along with the relationship with a ten-year old sister, and the mother’s “superior ability to assess the child’s needs” by looking at the child-custody dispute more accurately and reasonably, justified granting her what she wanted. 

CUSTODY -– MODIFICATION LITIGATION -– FRIVOLOUSNESS -– SANCTIONS.

Though it is impossible to tell from the unpublished 5-page opinion what was in the record, much less exactly what was going on in this case, a recent sanctions (fee award) case from the Court of Appeals sounds a strong cautionary note for male custody litigants. The father filed in the juvenile court for custody modification and lost, then appealed to the Fairfax County Circuit Court and lost there. The mother, who now lives in Florida, persuaded the trial judge that the father, who was held to have failed to show changed circumstances, brought the litigation for the improper purpose of harassing the mother, and the Court of Appeals agreed. The case appears on its face to be a fairly garden-variety custody dispute, and exactly what makes this harassment litigation as opposed to merely unsuccessful litigation by a male parent is not made very clear. What the Court of Appeals does say in justification of the §8.01-271.1 “sanctions” holding is that the father makes more money than the mother, and therefore was subjecting her to economic bullying, and the fact that he tried to negotiate a settlement after taking his appeal of right from juvenile court, and therefore was using the appeal as leverage to extort an unjust concession. Unfortunately, the court adds to the growing confusion by further blurring the distinction between sanctions and mere fee awards, because the sanction it upheld in this case was an award to the mother of all her costs and fees, including travel fees. The Court of Appeals also remands for a determination of the fees and costs incurred on appeal, so that she can be awarded those as well, along with any fees or costs she may incur on the remand itself. Ottosen v. Saunders, unpublished, 20 VLW 827 (12/6/05).

CUSTODY — MODIFICATION — RE-LOCATION — THIRD PARTY CUS-TODY — BURDEN OF PROOF AFTER PRIOR CUSTODY ORDER — JUVENILE APPEALS TO CIRCUIT – NO NOTICE.

When a mother who had married a man after the actual father was long out of the picture and thus made him a stepfather, and then entered into a shared custody arrangement with him when their marriage broke up, she could no longer rely with confidence on his non-parent status as an unrelated third party, the Court of Appeals ex-plained in Albert v. Ramirez, 45 Va. App. 799, 613 S.E.2d 865, 20 VLW 37 (6/7/05). After going along with the shared custody arrangement for a while, the mother decided she wanted to move away, and thus filed in juvenile court for a modification of the consent custody decree.

CUSTODY – MODIFICATION – FACTORS – “NO REASON TO CHANGE.”

The kind of custody decision that judges frequently make and get away with will not always survive appellate review if appealed. There is no question that a decision simply that “there is no reason to alter the status quo” does not conform to the current requirements of the Virginia statute on the announcement of decisions and the criteria that go into those decisions. A judge who apparently gave only this statement did not effectively insulate from appellate review his decision that a child living with his mother in Kentucky should stay there, and the decision is reversed for retrial. Perhaps the judge’s decision would have been fine if it had been “for the aforementioned reasons, heretofore recited, I see no reason to disturb the status quo,” but that, it seems, is not what the judge said. Gillikin v. Burchett, unpublished 20 VLW 1640 (5/23/06).