CUSTODY – THIRD-PARTY CUSTODY – NATURAL-PARENT VISITATION –APPEALS – SPECIFICITY OF PLEADING – WAIVER OF ARGUMENTS – PERSISTENT PRO-SE LITIGANTS – SANCTIONS. The unfortunate Mr. Switzer, who had his child taken away to be placed with a (then) unmarried cohabiting couple, has managed to infuriate the trial and appellate judges again with his tenacious – some might say masochistic – persistence. The Court of Appeals, in Switzer v. Fridley, unpublished, 26 VLW 504 (9/27/11), with a level of wrath as well as frustration which must be fairly high by now, gives what appears to be a patient and orderly consideration to a great many of the legal issues that this pro se appellant determinedly continues to raise. (This father has been fighting the various custody, visitation and record-access decisions for the past 11 years. On May 29, 2010 the Augusta County Circuit Court issued an Order “ending all cases” and remanding everything to the juvenile court, and the current appeal challenges all aspects of that decision, as well as past decisions, most of which the appellate courts have already ruled upon.) The decision to allow the third parties to seek and obtain custody of his child was upheld against this father’s constitutional and statutory arguments, and that matter is res judicata. The same is true of Switzer’s appeal of the denial of his modification motions. The emergency protective order against release of the child’s academic or health records to the father was also upheld on a previous appeal by summary affirmance since Switzer had no transcript or statement of facts to provide a written record, and that is also res judicata. As for the appellant’s arguments that all of this constitutes a refusal to rule on valid constitutional questions, that too has been determined before. The trial court had turned down the father’s modification motions and petitions, inter alia, for failure to show a change of circumstances. Though he now argues on appeal that the trial court erred by using an improper date to determine what was new evidence and what was old evidence to show change of circumstances, the way the appellate argument came up (the last time he appealed this) the father was not arguing that the date was wrong, but rather, that it was unnecessary for him to prove a change of circumstances at all (citing a 1962 U.S. Supreme Court case, which the trial court and the appellate court held does not apply here.) This time, though, the Court of Appeals does go through the original facts of this custody decision against Mr. Switzer, showing the rather dubious factual picture which originally persuaded the trial court to make those orders and then deny the father anything but extremely limited visitation. These decisions were, however, within the discretion of the trial judges, and a closer look at the original (and evolving) facts does show the father being his own worst enemy in this unseemly drama. The trial court’s denial of his motions to change custody and visitation, after hearings in June and August of 2010, did not exceed the judge’s discretion. Mr. Switzer also argued that it was error and an abuse of discretion for the trial court to consider the amount of time his son had lived with the new custodians as a bar to his ever regaining custody. He elaborated on this by saying there were no expert opinions stating that the son would be harmed by a change of custody back to him. The trial court had found the father to be unfit, and nothing that the father cited showed that the trial court indeed had relied on the length of time involved. As to the lack of expert opinions, there had been no assignment of error, as such, about that. (Visitation supervision and grandparent visitation were really non-issues.) The trial court had declared in its opinion letter that it imposed a sanction in order to “limit his ability to continue to pursue this case” on matters already decided. It made a finding that he had abused the judicial system by asserting meritless claims and wasted valuable and limited resources in frivolous litigation, and harassing the other parties by dragging them into court. The sanction imposed was to order Switzer not to file anything without obtaining court permission for the filing. He argued on appeal that the previous Switzer ruling from the Supreme Court, Switzer v. Switzer, 273 Va. 326, 641 S.E.2d 80 (2007), forbids any trial court or Court of Appeals action that might compromise his rights of appeal, and that the court does not have jurisdiction to impose that kind of sanction. Quoting the statute, §8.01-271.1, the Court of Appeals explained that there really is no limit on what kind of “appropriate sanction” a judge is authorized to impose in order to accomplish the purposes stated in the statute. Sanction decisions are reversible only if judicial discretion in imposing the sanctions, or in the choice of sanction, was exceeded. The Supreme Court Switzer case held, not that the Court of Appeals lacked the authority to dismiss the appeal as a sanction, but only that dismissal under the circumstances was an unduly severe sanction, not properly tailored to correct the problem involved. In fact, when the Supreme Court reversed the Court of Appeals on this particular point as to Switzer, it specifically said that a trial court does not have to use “the ultimate sanction of dismissal” when the same might be accomplished by a lesser sanction such as pre-filing permission requirements. The Court of Appeals said this lesser sanction was justified given Switzer’s history of filing numerous documents for over a decade, most of which were frivolous or harassing.