A court can award joint legal custody even if there is also a protective order against the mother’s directly communicating with the father, based on his claims of domestic violence and threats, the Virginia Court of Appeals said in Armstrong v. Armstrong (published, 11/12/19). Although most domestic violence protective orders are enforced to punish not only direct, but indirect, communication, the trial judge had specifically directed the parties to communicate through third parties when needed for co-parenting and allowing other narrow exceptions (explaining that their their “red-hot hatred has cooled to a slightly lower-grade, weary hatred.”)
Some details from the trial court’s opinion form a striking illustration of common patterns in custody fights:
In its opinion, the court found that both parties enjoyed a close relationship with A.A., and although the parent-child bond was equally strong for father and mother, each parent had deficits. The court had concerns that mother was “highly erratic” and verbally and physically abusive toward father. The court found that father “offers a more stable living situation than [mother]” and “provided certainty and stability to the child during the parties’ separation.” However, the court described father as “calculating” and found that he “pushes [mother’s] buttons, then decries her erratic response.” It determined that father “has clearly cut [mother] out of his life” and is “attempting to strategically take [her] out of [A.A.’s] life as well.” The court concluded, however, that mother’s erratic and abusive behavior toward father was “so extreme that the stability [father] provides outweighs his negatives.”
The father had no case law to support his argument against joint custody. He argued that for the trial court to ignore “the acrimony” was “a clear error of judgment” – one of the few kinds of abuse of discretion identified in Lambert v. Sea Oats Condo. Ass’n, Inc., 293 Va. 245, 252-53 (2017) (quoting Manchester Oaks Homeowners Ass’n v. Batt, 284 Va. 409, 429 (2012)). But the Court of Appeals points out that the trial court deeply and fully considered the acrimony and had explicitly based its ruling on the child’s best interests.
Here, the court expressly found that “[b]oth parents are unable to cooperate in resolving disputes,” and it declined to award sole legal custody to either parent. It did not single out either mother or father for obstructionist conduct but did note that father is “attempting to strategically take [mother] out of child’s life.” The court’s award of joint legal custody was a reasonable measure to prevent father from using primary physical custody to curtail mother’s relationship with A.A.
The mother appealed separately and the Court dealt with her appeal in a separate, unpublished opinion.