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.

Counselor's power over family is an infringement on parents' Fourteenth Amendment rights.

The father appealed, arguing that the trial court erred in delegating to the child's counselor "unlimited, unfettered discretion over any and all parenting decisions to which both parents have to adhere or be subject to the contempt power of the court." The Court of Appeals agreed, making a profound statement about the father's constitutional rights. In sum, the overly broad clause infringes upon the Due Process Clause of the Fourteenth Amendment. The court held that the trial court erred in ordering the parties to fully cooperate with the child's counselors's recommendations. 

Bonhotel v. Watts, 2016 Va. App. LEXIS 327 unpublished, 12/1/16

Giving the GAL 'sole discretion over determining visitation' is erroneous.

Reilly v. Reilly, 2016 Va. App. LEXIS 343 (December 13, 2016)

The circuit court order stated, the "Mother shall enjoy Supervised Visitation . . . . Supervision can be altered IN WRITING by the Guardian ad Litem based upon [the] Mother's strict compliance with the conditions and other provisions set forth in this Order." The mother argued that the circuit court "gave the GAL 'sole discretion over determining visitation' between [the] mother and the children." The Court of Appeals agreed with the mother and said that the plain language of the order gave the GAL "authority to alter supervision without a ruling from or any hearing in the circuit court." The court then granted the mother a trial de novo and held that it was erroneous "for the circuit court to approve such language allowing a third party, even a guardian ad litem, total discretion to decide [the] mother's visitation without providing judicial review because it is inconsistent with the language and purpose ofCode §20-124.2."

 

 

DNA-disproven longtime legal/social father can't get any rights as parent, but can seek third-party visitation

A court erred in giving the former legal father joint legal custody and visitation once DNA testing showed that another man was the father, Virginia’s Court of Appeals ruled in Bedell v. Price (6/11/19). The former legal father had helped raised the child and acted as his father for five years, first living with the mother and later having 50-50 time-sharing. Until the DNA test, there was no reason to be sure that he was or was not the father. The award of joint custody and visitation was based on the trial court’s finding that the “legal father” was “a parent”, and that was improper because it was based on the disproven fact that he was the natural father. The appeals court remanded to the trial court, indicating that it might nonetheless award “third party visitation” if it could satisfy the more stringent tests required by the natural parents’ “constitutionally protected liberty interests in parenting their child.”

Custody order to consult before major decisions does not include scheduling of uncontested first communion

Failing to tell the other parent when the child's first communion was rescheduled was not contempt of a court order to "consult with each other before making any major decisions regarding the child’s health, education, religion, or well-being,” the Court of Appeals says, reversing a Circuit Court finding of contempt. While taking communion may be a major decision, the exact scheduling of the first communion is not.

The case law is well established that “before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied.” Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309 (1977) (quoting Wood v. Goodson, 485 S.W. 2d 213, 217 (Ark. 1972)). “[T]he process for contempt lies for disobedience of what is decreed, not for what may be decreed.” Id. (quoting Taliaferro v. Horde’s Adm’r, 22 Va. (1 Rand.) 242, 247 (1822)).

... Here, the divorce decree provided that father would consult with mother regarding J.’s religion, which he had done by discussing with her that J. would enroll in classes to prepare for taking his first communion. Father told mother a month in advance when J.’s first communion ceremony with his class would be held and that J. would take communion on his own the next time he went to church with father if he did not participate with his class. Mother voiced no objection to J. taking communion, but said that he would not be available to do so with his class because she had custody of J. on that day and had other plans. Father’s duty to inform mother of the new date for J.’s first communion may have been implied under his duty to consult, but it was not stated expressly in the decree. If the parties had intended that each parent give the other parent notice of the child’s activities so that the parent could attend or participate, they could have stated that clearly in the decree. Because father’s duty to advise mother of the new date was implied, rather than expressly stated, the trial court abused its discretion in finding father in contempt.

Not contempt, but certainly not very nice, right? Well, actually, in the Court of Appeals's version of the facts, he effectively DID tell her when it was going to happen, and she did not seem interested in attending:

Father is a practicing Catholic; mother is of another faith. However, mother knew that father was raising J. in the Catholic faith and had not objected to J.’s taking religious instruction classes to prepare for his first communion. J.’s class was scheduled to take their first communion as a group on Saturday, May 7, 2016. Because mother had custody of J. that weekend, father sent mother an email on April 13, 2016, telling her about the scheduled first communion and asking if J. could participate with his class. Father also told mother that if J. could not attend on May 7, he would take his first communion on his own the next time he went to church with father. Mother replied that she had plans for that weekend so J. would not be available, but she did not say that she objected to J.’s taking communion, nor did she ask to be informed of any alternative date. Mother knew that father went to church on Sundays. J. took his first communion on May 15, 2016. Mother learned he had done so on May 16, 2016, but she made no complaint for over a year until she sought the rule to show cause.

On fees, the Court upholds the denial of attorney's fees to the father, and declines to award him his fees on appeal.

Aviles v. Lewis, Va. Ct. App. unpublished 7/3/18. Opinion by Senior Judge Rosemarie Annunziata.

When imputing income, hypothetical child care costs counteracted by other parent's availability to be with kids

Wife argued that when the trial court imputed income to her, it needed to deduct the child care costs she would have if she worked. The Court of Appeals points out that “[w]here appropriate,” the court calculating child support “shall consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive.” Code § 20-108.2(F). If a court can do this with actual child care costs, it can also do so with hypothetical ones in this situation, the Court says.

If the court determines that the husband is willing and able to provide necessary childcare, the court does not abuse its discretion in considering this fact in weighing the “obligations, needs and financial resources of the parties” for purposes of spousal support. See Code § 20-107.1(E)(1)

The Court approvingly lists several specific facts which the trial court considered relevant to this:

The evidence established that at the time of the evidentiary hearing, the wife’s part-time job provided her with the flexibility both to work from home and to take her younger child to the office with her on occasion as needed. Further, the evidence established that although the parties’ daughter was ten years old, their son was fourteen at the time of the evidentiary hearing and almost fifteen at the time of the hearing on the motions to reconsider and rehear. Additionally, the husband testified that he had “complete control” of his schedule. He said that he could turn down promotional work in order to care for the children and would be available any evenings necessary if the wife obtained the job identified by the vocational expert. The circuit court found simply that “[t]here are no work-related childcare costs due to [the wife’s] control over her current and anticipated work schedule” and “the nature of [the husband’s] . . . career” moving forward.

Henderson v. Henderson, 5/15/2018, Record No. 1402-17-2. (A separate opinion issued the same day, with a different case number, addressed husband's appeal of various rulings.) The opinion in "1407" addressed so many different issues that I am describing them in separate posts.

 

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.

 

No-show waives appeal right in case appealed from Juvenile to Circuit Court

A father who appealed his parental rights termination from Juvenile to Circuit Court, but skipped the trial of his appeal, can be treated as waiving the right to appeal, when he had been involved in the litigation and presumably knew of his upcoming trial date, but then moved to Texas three weeks before it, the Va. Court of Appeals says.

The deciding rule is from Va. Code § 16.1-106.1:

D. If a party who has appealed a judgment or order of a district court fails to appear in circuit court either at the time for setting the appeal for trial or on the trial date, the circuit court may, upon the motion of any party, enter an order treating the appeal as withdrawn and disposing of the case in accordance with this section.

There is no indication that this being a termination of parental rights case makes the rule any more or less strict than in any other juvenile-court appeals falling under this statute on “Withdrawal of appeal in civil cases.” However, the Court cites the three years the child had already languished in foster care, as well as the father’s conduct in the litigation and his sudden move, as reasons why the Circuit Court was right to use its discretion to find that the father had voluntarily “withdrawn” his appeal when he did not show up for it.

Blake v. Norfolk DSS (unpublished, 5/19/15) VLW 6-1-15 p 16

Sailor allowed to relocate children across country

Virginia’s Court of Appeals upholds a decision letting a Navy sailor move her children from Norfolk to her new posting in San Diego; she had looked for postings in both areas as her current assignment neared its end. Stated and implied reasons:

• Mother’s family connections on the West Coast, including her mother who would help care for the children and an aunt in Arizona who could be available in an emergency.
• Father’s mental health condition made him unable to care for the children for extended periods.
• Inconsistently with that, but importantly, the trial court had protected the father-child relationship as much as possible by ordering the most equal sharing possible of the children’s time, giving father all summer with them in Virginia and liberal visits in California.
• The trial court did not give the mother any preference under the Virginia Military Parents Equal Protection Act, such as a different burden of proof. It took the facts, including those related to her military service, into account when seeking a determination that would be in the best interests of the child.
• The father did not have any job that would keep him from moving to California too, nor which contributed to the children’s welfare. He did maintenance work in exchange for living rent-free.
• In the past, the father had moved with the mother’s Navy moves. (That is largely a good point, but it is a fundamentally different decision to move as part of an intact couple, which makes decisions together and cares for each member’s sustainable welfare, versus pulling up stakes and moving based on the movements of an autonomous “legal stranger” who could go elsewhere at any time and may not share information about intentions, possibilities, etc. I recently had a case where a soldier was reassigned to Malaysia, and while litigating against relocation the mother also made serious efforts to get a job there, but then before he moved, the assignment changed to Hawaii, and then to Germany before he actually moved away.)
• The mother’s regular income, health benefits, etc. Those of course are not a legitimate reasons for giving one parent custody over another, and it’s hard to imagine a father getting away with asserting those factors. But in this case, the mother said that if she could not move to San Diego she would leave the Navy. (The opinion does not say if she would be forced to leave the Navy, or choose to. Nor does it discuss civilian jobs the mother could get in Virginia, nor whether she had served long enough to retire with health benefits.)

Not all these factors would normally be very persuasive, nor weigh completely in favor of the mother, but they were all viewed differently in the light of the father’s obvious personal problems and inability to function as a custodial parent.

Wheeler v. Wheeler (unpublished, 5/19/15) VLW 6-1-15 p 16