Virginia Family Law Appeals

Changing vague “reasonable visitation“ to specific schedule does not require "change of circumstances"

Changing a court order’s unspecified “reasonable visitation“ to a specific schedule does not require a showing of change of circumstances, because there’s not really any existing visitation order to modify, the Virginia Court of Appeals says in Burgess v. Burgess, 3/16/21. The original order “did not adjudicate the specifics of visitation.“

The court that made a specific visitation schedule did so after ruling that there was no change of circumstances that would justify modifying custody. The father had moved from Fort Bragg to Fredericksburg, which was about an hour closer to the mother and children in Portsmouth, and the parents had been unable to agree on a visitation schedule after the move. 

This reaches the right result with faulty reasoning, which could have unintended and unwelcome effects later on.  The lower court essentially used two separate “change of circumstances” tests for the separate questions of custody and visitation. That was not only commonsensical, but even hypertechnically correct, because in Juvenile court, where the case started, custody and visitation are legally two separate cases. But that’s my opinion. Now back to the appeals court’s opinion:

The mother also argued that once the Court granted her motion to strike, it had no evidence to support a finding that a visitation schedule was in the children’s best interests. Because her motion to strike was granted, the mother did not present any evidence. But that does not show that the court did not consider the children’s best interests.  And striking the father’s modification case, ruling that he had not shown a chance of circumstances, did not impair the court’s power to set a visitation schedule, because, as the appeals court views it, that was not a modification and did not require a change of circumstances.

Adoption reversed because adoptive parent caused the mother's lack of relationship and contact with child

The Court of Appeals reversed a trial court that mis-applied the best-interests-of-the-child standard in approving an adoption by finding that the mother withheld consent to it contrary to the child's best interests. It said the trial court put too much emphasis on the mother's long time without contact, and lack of a relationship with, the child, and not enough emphasis on how that separation from the child was lengthened and worsened by the adoptive parent's deliberately interfering with and preventing contact, and lengthy litigation.

Gregory v. Martin, Record No. 0816-15-3 (July 19, 2018, unpublished)

The mother had a long history of drug abuse was incarcerated for grand larceny, breaking and entering, and larceny with intent to steal when the child turned one. The father also had a problem with drug abuse, therefore the child stayed with the paternal grandfather and the child's father's sister, who filed a petition for adoption. The child's father gave consent, but the mother did not. Upon the mother's release, she filed a motion to amend visitation, but the court denied her motion because it was not in the best interests of the child, and found that the mother unreasonably withheld her consent for the aunt to adopt her child. There was a court appointed GAL on the case, and the GAL stated that the mother never really had a relationship with the child. The court found that the child was in a good place and should stay with the aunt, and that the mother refused the child's best interest by withholding her consent for adoption.

Keeping children out of country, preventing visitation, is grounds for losing custody

When a mother took the children to South Korea and refused to return them, it was proper to consider her denial of access to the father as a factor in determining child custody and awarding it to the father, Virginia’s Court of Appeals says in Park v. Chong (2/5/19, unpublished). 

Court must consider child's current best interests before incorporating agreement into court order

A trial court had to consider the best interests of the child before incorporating an agreement on child custody and visitation into a court order, the Virginia Court of Appeals says in Matthews v. Brinckhaus (7/25/17). In that case, after the agreement was signed, a parent was convicted of assault. A condition of probation was to have no contact with his child. The agreement allowed visitation, and the other parent argued that it should not be made part of a court order because it was no longer in the child's best interests. The trial court expressly declined to consider best interests nor make any findings on the factors listed in Code Sec. 20-124.3.

This is a hard case that could make very bad law for 99% of custody cases, even though it is not only right for these parties but also completely legally correct in this case. The big question is, does this rule apply to every case in which an agreement is incorporated, or only where a party contests the incorporation? Even where a party contests incorporation, will it be considered frivolous to do so without a change of circumstances since the agreement, or without facts as compelling as those in this case?

Other trial judges could read the opinion to mean that every incorporation of an agreement on custody or visitation requires an evidentiary hearing. Or that if any party wants to back out of the agreement at the time of incorporation, a full-fledged custody trial can be held, no matter how recent the agreement, without requiring any threshold showing of a major change of circumstances affecting the child. Others might commonsensically apply a change of circumstances cutoff and not worry about uncontested cases at all, or might look for procedural facts and grave, obvious substantive considerations, similar to those in this case.

The Court's opinion does not say whether it is limited to the facts it recites, nor does it include any other words limiting the literal application and scope of its pronouncements. But there is one big clue to whether the opinion is intended to introduce new practices fundamentally changing the nature and value of custody/visitation settlements, or is just limited to its facts and reiterates existing law and practice: it is unpublished.

Court red-shirts golf prodigy, sidelines pushy, controlling sports parent

The Virginia Court of Appeals in Vechery v. Cottet-Moine (unpublished 4/4/17) upheld an order restricting the control, and physical presence, of an overly sports-minded and control-minded parent, giving the other parent sole legal/physical custody, and forcing a 10-year-old golf prodigy to take a one-year break from competition and to limit her golf play/practice time. The order had also said the father had to stay on the opposing team's sideline at gymnastics meets, and stay away from gymnastics practices.

The father had pushed for more golfing, and had tried to unilaterally forbid the mother from playing golf with the child, attending tournaments, or selecting instructors for her on her own time.  

"Both mother and father testified that the child was a good golf player and enjoyed golf. Father presented evidence that the child was "phenomenal" at golf "for her age" and had "the potential to definitely make it on the LPGA [tour]." Father testified that the child played in nineteen golf tournaments the year prior to the hearing, and he would like for her to play in between twenty and twenty-five golf tournaments for the upcoming year. Father admitted that he was willing to take the child out of school, so that she could travel and play in a golf tournament. 

. . .

"Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986) ...held that a court may restrict a child's activity with the non-custodial parent when "the activity presented a danger to the child or otherwise affected the child's welfare." Id. at 411, 345 S.E.2d at 11.

"The circuit court held that competitive golf affected the child's welfare. The judge explained, "It is too much stress and I just think maybe if we take that out of the equation, perhaps things will calm down a bit." Considering the facts of this case, the circuit court did not abuse its discretion in prohibiting the child from playing competitive golf for one year."

The trial court observed that the parents did not cooperate with each other, and exposure to that non-cooperation was bad for the child. And:

"The circuit court held that father disrupted the child's gymnastics practices. A witness testified that father would show up at gymnastics practice, interrupt the class, and pull the child out of practice. She would not return to the practice until mother told her to do so."

Other holdings:

After the trial, the father filed a motion to re-open the taking of evidence because the mother had been criminally charged with assaulting him at a soccer game. But he did not get the trial court to rule on his motion, so there was no ruling to appeal.

The trial court did not abuse its discretion by limiting the trial to one day, which both sides had originally scheduled it for, even though another judge had opined that it would take two, and the father complained about having to trim his schedule of witnesses. The is a right to adequate time to present one's case, but the amount of time necessary cannot be defined by any precise rule, the Court says, citing Brown v. Peters, 202 Va. 382, 391, 117 S.E.2d 695, 700 (1961). Anyhow, here the father was given enough time to present his case, the Court says. 

Refusing to speak with the child in Chambers was not error. The trial judge decided that she had heard enough evidence, including evidence of the child's perspective. And the father did not call the child as a witness:

"In M.E.D. v. J.P.M., 3 Va. App. 391, 404, 350 S.E.2d 215, 224 (1986), this Court held, "In the absence of any action to call the child as a witness, we believe the court did not err in declining to 'meet with' her in chambers." At the time the evidence was presented in this case, father did not call the child as a witness and agreed that the child did not need to be called. Consequently, the circuit court did not err ..."

Despite the mother's all-around triumph, the appeals court denied her request for an award of her fees and costs in defending the appeal.

 

Custody bid not focused on kids' needs loses, even by mom against non-bio dad.

Virginia's Court of Appeals in Smith v. Smith (unpublished, 10/27/2015)  upheld a decision refusing to transfer primary custody to the mother, from a father who turned out not to be the biological father of two of the three children in a paternity test the mother requested. The children had been in the father's custody for several years, he was on their birth certificates and was the only father they had ever known, and those facts were enough to rebut the presumption in favor of natural parents. 

The mother's evidence was not about how the children's "needs were not being met and how she could meet them," it was about her disapproval of the father's girlfriend, which led her to file for custody modification. So she failed to prove that a change was in the children's best interests. A guardian ad litem reported that the children were stable with no changes in their circumstances. 

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).

Unasked-for supervised visitation relief; challenged - Va.Ct.App.

CUSTODY – ALIENATION OF CHILD FROM PARENT – ORDER OF SUPERVISED VISITATION TO ALIENATING PARENT – ORDERING UNASKED-FOR RELIEF – PROPERTY DIVISION – IMPROPER DIVISION OF SEPARATE-PROPERTY INTEREST IN REAL ESTATE- OBJECTIONS TO COURTROOM CONDUCT OF OPPOSING COUNSEL – APPEALS. In an unpublished 14-page opinion, the Court of Appeals reversed on the main equitable distribution point, the division of marital real estate with a separate-property component, and affirmed the trial court’s grant of custody to a formerly non-custodial father. It is workable only to take these matters in the order in which the appellate court went through them. Custody first. The divorcing parents had been married less than four years when they separated in January of 2008. Their one child, we must wait until almost the end of the opinion to find out, was a girl. The appellant wife contended that it was error to award custody of the child to the father because she said he had sexually abused child and she provided excellent child care, and because it disregarded her three experts' testimony about abuse: that the child was credible, had not been coached, and had made spontaneous allegations of a sexual nature, as well as their diagnosis of sexual abuse, and by the husband. She also challenged the judge ‘s giving her supervised visitation, rather than full custody, when none of the experts had recommended that result and husband had not sought it. She challenged the ruling that there was no history of family abuse in the husband’s background and ignoring expert testimony that husband was a risk to the child She challenged. giving child support arrearages to husband for a time when he did not have custody and a time when he “not before the court,” and failing to give the wife such arrearages for her period of custody. The Court of Appeals goes through its usual litany of the many elements of the standard of review and the many points upon which it has no power to second-guess the trial judge. This trial took four days in 2011. On the abuse allegations, it struck the trial judge that this mother took the child to several counselors who later testified on her behalf, and that the child had undergone at least six interviews and forensic evaluations during that process, and had been subjected to a SANE examination at the age of 3 ½. The judge at trial made the interesting ruling that her experts had “made their various diagnoses… within a context established by [ wife’s] false allegations, misrepresentations, and calculated strategy of misinformation,” and he accepted husband’s evidence that one of those child interviews was “conducted in such a poor way, and under circumstances such that the statements made by [the child] were unreliable on their face.” It found wife and a indoctrinated the child, and had planted lies in the child’s mind, and found that none of the child’s statements about it was impromptu or spontaneous, and that the wife had planted the statements in the child’s mind and manipulated the child so that the disclosures could be used at a custody and divorce trial. It found that the wife had misrepresented facts to the court on even the most basic matters and that she had been dishonest with her husband, the child’s regular caregivers, her professional witnesses, and the court. These are all findings that an appellate court can’t overturn when there’s evidence to support them, which the Court of Appeals found there was. Whatever the “ inappropriate incident” when husband was a juvenile may have been, is certainly did not show “family abuse,” and the Court of Appeals cannot say that this is plainly wrong. The trial court had carefully reviewed and recited all of the Code §20 – 124.3 factors and its letter opinion discussed each in detail. It found that the child’s best interests required she be in the husband’s custody because the wife would not allow a proper father daughter relationship to develop. He also found that themother had engaged in “an active campaign to alienate the father from the child.” These findings were all supported by the Record and thus there was no abuse of discretion. It is true that the husband had not asked that there be supervised visitation, but in a child custody case such as this, the court does not exceed its authority by safeguarding the best interest of the child with such an order. Wife argued on appeal that it was wrong to deny her access to the child’s medical and academic records because this would act as a permanent bar to her future suits for modification, since she could not “demonstrate that extreme infrequency of visitation, with the unreasonable restriction of supervision,” would have a bad impact on the child. But these arguments had not been raised in the trial court. And while she also argued that it was wrong to order supervised visitation because none of the experts had recommended it, judges have wide discretion to disregard expert testimony – especially what they did not say. And the Court of Appeals found that in fact the evidence did support supervised visitation. The trial court had found wife is not a credible witness and that her child sexual abuse allegations were unfounded, that she had not kept husband informed about the child, and had made all decisions unilaterally, had manipulated the child to believe she had been molested, and to believe the father was a danger to her. Also significant were wife’s “punishment and reward tactics through sleep deprivation and food” to manipulate the child. It also found  that she had embarked on a campaign of denigration of the husband in the child’s mind and had been trying to poison the child’s mind regarding him. The trial court’s finding was  ultimately that this mother could not involve herself helpfully in this child’s life, and had shown no ability to assess and meet the child’s emotional and intellectual needs, and that her ability to support a child-father relationship was not just poor, but nonexistent. Canedo v. Canedo, unpublished, R. No. 0851-12-4 (2/26/13).

Support change when child moved to dad's house snarled by unusual contract wording

CHILD SUPPORT – AGREEMENTS – RETROACTIVITY OF SUPPORT-PROVISION CHANGE – CHILD’S MOVE TO FATHER’S HOUSE.  A case from Loudoun County involving a “Parenting Agreement” between two apparently divorced spouses has perhaps been media-hyped as something more than it is.  The question in Voltz v. Voltz,____ Va. App.____, ____SE2d____, (3/27/12), was not whether the agreement was enforceable as to child support (a matter never in dispute), but how the agreement should be interpreted. For the Court of Appeals it involved interpretation of the language of a crucial clause as to retroactivity of support-amount changes and also the statutory power of courts to grant such remedies. Father contended that the trial court erred and was not faithful to the written agreement when it refused to modify the child support amount retroactive to the actual day their daughter’s residence changed from mother’s house to his house. The Court of Appeals also had to interpret the arbitration decision that resulted from the parties’ dispute, since the agreement provided that the dispute should be arbitrated. That decision, helpfully or unhelpfully, but somewhat oddly, determined a child support amount, and said that future modifications would be justified in the event of “a material change in the Parenting Agreement,” which would seem to be a circular way of saying never. The father certainly had not slept on his rights: the day after the daughter moved in with him full time, he moved to modify the custody order, and the trial court then awarded him physical and legal custody.  When he moved to modify child support, the dispute was over the date the new amount should start.  The trial court held that the new amount should start only from the date the new custody order was entered.  That meant that he still had to pay for the entire year 2008 despite the daughter’s living with him a significant part of the year.  On appeal the father claimed that the trial court had thereby modified in non-compliance with the agreement, since there was certainly a “material change,” in the sense used by that contract when the daughter moved. Support payments become judgments as they become due, so generally courts can modify only retroactive to the time of filing for modification, but courts are allowed to impose a solution reflecting the parties’ agreement about future modifications, as such provisions are “valid and enforceable,” under §20-109.1. And that leaves the arbitrated agreement, which did include a provision binding them to modified child support immediately if one of the children moves to the other’s residence.  Here, in arguing for the earlier modification affecting this date, the father relied on the “if there is a material change in the Parenting Agreement …” language of the arbitrated decision. Now obviously, as the appellate court noticed right away, that decision calls for changes in the agreement itself, not in the residence of the child. A modification of the agreement took place when the circuit court modified it by changing the daughter’s custodial residence by Order dated April 17, 2009, but there hadn’t been a change to the agreement before that. Changes in the language of a written agreement are certainly not the same thing as a change in actual physical location of a child’s home. The Court goes on to make the matter even more abstract by more deeply analyzing the agreement itself, but that didn’t change the result.  After his first argument understandably failed, the father went on to invoke another paragraph of the agreement saying that “child support payments shall continue to the … cessation of his or her residence with either parent.” In a bit of reasoning that may leave some readers struggling behind, the appellate court says that that language meant when the family support obligation ended rather than the time physical residence ended.  But it’s obvious that neither one of the parties intended to end the child support obligation entirely upon this change of residence, since that would contradict the earlier agreement paragraph stating that modification would happen if both children ended up residing primarily with one party, and if the agreement itself changed.  Obviously, this appeal was not a frivolous one, and the father’s argument had been “fairly debatable,” so such fees are denied.  The trial court did not violate the terms of the Parenting Agreement and therefore the decision is affirmed.   

Switzer v. Fridley: Father's 11-year battle against non-parents' custody

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.