Virginia Family Law Appeals

Alienating parent gets supervised visitation, Va. appeals court approves

CHILD CUSTODY – WHAT IT TAKES TO GET MEANINGFUL RELIEF AGAINST PARENTAL ALIENATION – SUPERVISED VISITATION. The Court of Appeals, in an unpublished opinion, affirmed a decision continuing child custody with the father and supervised visitation to the mother after a totally unrestrained parental alienation campaign against the father that amounted to a one-sided all-out war. What pushed the trial judge to such extremes in this rather typical alienation case, with the usual degradation of the father, claims of starvation, beatings and rape, pornography use, and a few somewhat original touches, like warning the daughters to keep their door closed, and allegations of bribery of the legal system, may have been the judge’s decision that the mother must be delusional. After all that the judge had heard, this finding of abnormality was reason enough for depriving the mother of her expected by-right custody. The Court of Appeals finds a record that corroborates instances of bizarre behavior and destructive tendencies. It was also O.K. for the trial judge not to have been convinced by the mother’s mental health professionals, who never interviewed the children, relied exclusively on the mother’s self-reported narrative, and nonetheless testified. The judge found from ample testimony of three witnesses that she intentionally sabotaged the father’s relationship with the daughters. The judge also interviewed the 12- and  13-year-old daughters in camera, and it was all right for him to disregard as unreasonable their preference to live with the mother. The judge had concluded that it could well damage the girls to have them live any longer with a parent who is determined to eliminate from their lives their entire relationship with their other parent. Sims-Bernard v. Bernard, unpublished, R. No. 2090-12-1 (10/8/13).

Va. rejects "Existing Indian Family" doctrine & other attacks on Indian Child Welfare Act

INDIAN CHILD WELFARE ACT – TRANSFER TO TRIBAL COURTS – NEW LEGAL STANDARD. Giving an enormous boost to the adoption industry, the U.S. Supreme Court this summer drastically whacked away at the scope of the Indian Child Welfare Act, 25 USC §§ 1901 - - 1963, moving justices Scalia and Sotomayor to pen some of the most eloquent and outraged dissents heard in a long time. But much as that opinion demonstrated how much the majority love the adoption industry and all of its marketing publicity, the peculiar posture of the case dictated a result that left plenty of flexibility for the state courts in their continuing discretionary application of this Act. Now it seems the Virginia Court of Appeals has had some time to read and ponder the strong anti-tribal sentiments so forcefully expressed by the U.S. Supreme Court majority, but passes up at least one opportunity to jump on the bandwagon. Here, a Fairfax trial court decision gave the appellate court its chance to decide whether to embrace or reject the so-called “Existing Indian Family Exception” to the requirements of the ICWA. That is, the proposition that the Act applies only when the child is being removed from “an existing Indian family.” The argument raised by the foster parents and the Guardian ad Litem was that because one of the parents of the child in question was a non-Indian, the exception applied, the Act did not apply, and thus the case should stay in the Fairfax Circuit Court. (Note: this is slightly different from the “intact Indian family” exception that the U.S. Supreme Court came up with this summer in the Baby Girl case, which was that if one parent is a mere visitation parent, the Act doesn’t apply.) However, the Court of Appeals says, “we decline to recognize the Existing Indian Family Exception, and join the growing chorus of courts that have rejected the Exception.” The appellate court’s reasons are very clearly and very patiently explained, but like so many of the decisions in this 29-page opinion, can’t be detailed here. Basically, the exception is entirely court-created, Congress didn’t put it in the statute, the voluminous case law rejecting the theory is indeed a chorus, and “we decline to rewrite ICWA…” Next, the statute allows state courts to deny transfer if “good cause” is shown. The foster parents and GAL argued that “good cause” is synonymous with “best interests”. The Court of Appeals disagreed, saying it takes “a substantial risk of causing immediate, serious emotional or physical damage to the child, from the transferred decision itself, and adding that it has to be shown by clear and convincing evidence. Moreover, best interest is not pertinent to jurisdictional decisions. Nor, the Court of Appeals says, is there a rule that both parents have to be Indians for the Act to apply: Congress didn’t put any such thing in the act, and it’s clear that they didn’t intend to. Same with GAL/foster parents’argument that the case had to stay in Fairfax because that is the only court that has jurisdiction over both parents: the Act doesn’t say that, and besides, the Vietnamese father has consented to tribal jurisdiction. The Court of Appeals ruling promulgating the “immediate, serious damage” standard required a reversal and remand of the trial court decision, since the circuit court had articulated a slightly different one. Thompson v. Fairfax County DFS, _______ Va. App.________,_______SE 2d______ (9/10/13), Record No. 2185-2-4, was four consolidated appeals. It also necessitated the unpublished remand in Nunnally v. Dinwiddie DSS.

 INDIAN CHILD WELFARE ACT – APPEALABILITY OF JURISDICTIONAL DECISION – FINAL ORDER VEL NON. The unpublished Citizen Potawatomi Nation v. Dinwiddie DSS, however, presented another legal question which was not governed by the Thompson case. And it is a disturbing, infuriating and illogical ruling to those who use the ICWA or the Hague Abduction Convention, where the idea that a ruling on jurisdiction is in practical terms anything but final is nothing but laughable, and for 99.9% of litigants, justice by appeal is an impossibly moot abstraction. Of course it should not have been disturbing to anyone familiar with UCCJEA litigation, since the same court some time ago decided that the result in a UCCJEA decision on jurisdiction is non-final and can’t be appealed. And so it is with a decision under the ICWA denying a transfer to the courts of an Indian tribe. Record Nos. 1713-12-2, 1724-12-2, 1725-12-2, 1726-12-2.