Virginia Family Law Appeals

CUSTODY -- RELOCATION -- ILLEGITIMATE CHILDREN.

Sometimes a trial judge will actually deny a mother permission to remove a child to a distant state, and in Young v. Forrest, unpublished, 16 VLW 118 (5/29/01), the Court of Appeals upheld such a decision from Chesterfield County.

CUSTODY — RELOCATION — FACTORS — ADULTEROUS COHABITATION — NO NOTICE.

While it has looked for quite a while now as though mothers who relocate the children, even without the statutorily required notice, can do no wrong, there is at last a Court of Appeals opinion upholding a trial judge who transferred custody of a three-year-old to the father after the mother moved to Florida with a man she had met in a bar while the Virginia National Guard husband was deployed overseas.  The Court’s unpublished opinion, Vanderveer v. Vanderveer, 19 VLW 462 (9/28/04), does point to some variables that might be helpful to know about if the Court of Appeals ever thinks about these issues the same way in some other case.

CUSTODY – RELOCATION – BURDEN OF PROOF, PERSUASION, ETC.

The subtle reasoning of a case from Fairfax allowing a custodial mother's relocation of the four kids to New Jersey is a bit hard to follow.  The mother wanted to move the kids to New Jersey, and there's no question that's a superior environment to Virginia (quality of the schools, generally good environment of the community, the Court of Appeals explains), and the young age of the children counted for the mother, as did the improvement in her ability to provide financially if she moved north, and the role she has played in the children's lives heretofore.  Yet the Court of Appeals holds that the Fairfax trial court erroneously placed on the father the burden to prove that the mother's relocation would not substantially impair his relationship with the children.  But while that was error, the Court of Appeals says, apparently derived from a misreading of Scinaldi v. Scinaldi, 2 Va. App. 571 (1986), the error was harmless.  Let's see why.  The mother's burden of proof was nothing but best interests, which she had to show by a preponderance of the evidence.  Because she established her prima facie case, the Court of Appeals says, the error of placing an affirmative burden of proof on the father [sic] was harmless.  Apparently in this case, Stockdale v. Stockdale,   15 VLW 272 (8/8/00), the father presented no evidence that his relationship with the children would not be substantially impaired.  That being so, it couldn't be erroneous to put an improper burden on him. Did he incur the erroneous burden ruling, and then decide to present no evidence so as to stand on his rights and save them for appeal? The opinion doesn’t appear to say.

CUSTODY – RELOCATION – "UNITY OF INTERESTS" DOCTRINE – JOINT CUSTODY CASES.

Defying the trend merchants, the Court of Appeals in Cloutier v. Queen,   (5/8/01), issued a 20-page relocation opinion that may seem to stand only for the proposition that in these cases the decisions will continue to be extremely fact-specific, and that the Court of Appeals will nearly always uphold the trial judge.  The father and mother had originally agreed on a very specific and careful joint legal custody arrangement (parenting plan) with somewhat more time to the mother, which father apparently concededly gave her "primary physical" custody.  The mother filed in court for permission to move the children to Pennsylvania, the father cross-filed for a change of custody, and the trial judge ended up denying both petitions, on the ground that the present two-parents-close-by arrangement was in the best interests of the children.

PROPERTY DIVISION — PUNISHMENT OF CONDUCT — CRIMINAL CONVICTIONS AND DISSIPATION — PAYEE IMPUTATION — NEW JOB OFFER REQUIRING DISTANT MOVE.

The same court that has so sanctimoniously scolded moral condonation of adultery in some cases finds plenty of scope for legitimate punishment of immoral conduct in the case of a man who incurred criminal convictions and sentences, causing his wife great embarrassment and the family assets considerable expense.  The commissioner, upheld by the circuit court, found that the husband's convictions had a "devastating impact on the marriage."  Wife's symptoms of great emotional distress included weight loss, and treatment for stress and depression resulting from the scandal.  The trial court awarded the wife 90% of the marital property, plus a monetary award, and the Court of Appeals finds that proper. So it is perfectly all right, once the state has punished a criminal offender through the criminal law system, for the divorce courts to punish him again for the same conduct, but  the trial court "did not impermissibly use husband's criminal conduct punitively," whatever, exactly, that means.  The $20,018 award was a dissipation remedy, for the husband had withdrawn $59,000, of which $20,018 was approximately half, from his retirement accounts to pay restitution costs.  It was also all right for the court not to impute income to the wife, because when her job was eliminated, the employer's offer of a new job was in Norfolk, and that would have meant moving when the children were in school in Fairfax.  Also upheld is the $20,000 fee award.  Budnick v. Budnick,   18 VLW 1137 (4/20/04).

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.

VISITATION – THIRD PARTIES – STANDING –BOY FRIEND OF MOTHER – “ACTUAL HARM” STANDARD – RELOCATION – FEES ON APPEAL.

In one of the most tenuous third-party standing cases yet, the Court of Appeals found standing for a boy friend of the mother, who was the father of her daughter but was suing for visitation with her son, who had a different father. The Court of Appeals found him a “person with a legitimate interest” under §20-124.1, since, although neither a blood relative or step parent nor a former stepparent nor a “family member,” he had acted as a father to the boy for some four years and was closer than many stepfathers are. But because he did not establish “actual harm” that the boy would suffer without visitation from him, the denial of visitation was affirmed. Also affirmed was the decision letting the mother move the child to Florida, but the mother’s request for fees on appeal was denied. Surles v. Mayer, ___ Va. App. ___, ___ S.E.2d ___, 40 VLW 1176 (4/25/06).