Does lack of co-parenting justify a modification of child custody in Virginia?
Not necessarily according to Piccirillo v. Atkins, Record No. 2064-09-4 (Va. Ct. App. 2010), an unpublished case in which the Virginia Court of Appeals summarily affirmed the Virginia Circuit Court’s ruling granting physical custody of the parties’ child to the father. Although the Virginia courts generally encourage co-parenting between parents and would like a child to have a close and continuing relationship with two fit parents, a lack of communication and co-parenting on the part of one parent will not necessarily result in a change of custody from that parent to the cooperative parent, if the best interests of the child are served by being in the custody of the non-cooperative parent.
The mother alleged four counts in which the trial court erred: (1) awarding custody to the father in light of the evidence and Virginia Code §20-124.3 factors; (2) not considering the father’s unilateral and deceptive relocation to Maryland as a “material change of circumstances”; (3) awarding custody to father even after establishing that the father did not want to co-parent with the mother or respect her wishes; and (4) awarding custody to the father when that decision had the effect of relocating the child to Maryland. Upon review, the Fairfax County Circuit Court affirmed the trial’s court’s decision and dismissed the appeal.
The parties were married one year when their only child together was born. Three years later, the parties separated, and they divorced two years after their separation. Just prior to the divorce, the trial court entered a custody consent decree, awarding the parties shared joint legal and physical custody over the child, with custody rotating on a weekly basis. Both parties subsequently remarried. The father filed a motion for a protective order against the mother and her new husband, after the child told the father that his stepfather had been abusing him without any intervention from the mother. The Juvenile and Domestic Relations District Court issued a preliminary protective order and appointed a guardian ad litem for the child. Although, the JDR court denied the motion for a protective order a month later, the mother was not able to see her child until the final custody hearing four months later. Nevertheless, the guardian ad litem recommended counseling for the child.
Both parents filed motions for a change of custody in the Virginia Circuit Court. In addition, the father filed motion requesting that the court name a particular licensed clinical social worker for the child over the mother’s objections of bias, and that a custody evaluation be made, and the court granted the father’s motions. The trial judge the custody issues in January 2009, and after a review of Virginia Code §20-124.3, the court granted temporary physical custody to the father, giving the mother a transitional visitation schedule. On June 25, 2009, the trial court reviewed what happened in the case since January and held that the parties would have joint legal custody with the father having physical custody in Maryland.
According to the mother, the Virginia Circuit Court judge erred because of the evidence at trial, the custody factors in the Virginia Code, and the father’s refusal to co-parent with the mother. As the trial judge established, however, the child’s best interests always play the most important role in consideration. See Farley v. Farley, 9 Va. App. 326, 387 S.E.2d 794 (1990). Moreover, unless the trial court abused its discretion or the evidence contradicts the court’s ruling, the appeal must affirm the lower court’s order. See Brown v. Brown, 30 Va. App. 532, 518 S.E.2d 336 (1999).
In addressing the mother’s argument that the trial court did not consider the factors in Virginia Code Section §20-124.3, the Court noted that the trial court had discussed them at length both in the January hearing and in the review at the June 2009 hearing. The mother alleged that the court should have taken the father’s e-mails, refusals to consider her requests, and his “deceptive” move to Maryland to be with his pregnant wife (rather than commuting between the Maryland home and the home in McLean, Virginia) into account before ruling. The Fairfax Court, however, found that it had been and continued to remain in the father’s custody, because he was comfortable there, and he was not comfortable in his mother’s home because of his stepfather.
Responding to the mother’s appeal, the Court noted Ferguson v. Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 417 S.E.2d 1 (1992), which states, “Where the record contains credible evidence in support of the finding made by that court, we may not retry the facts or substitute our view of the facts for those of the trial court.” While the mother contended that the custody arrangement and the relocation to Maryland was not in the child’s best interests, the Court found that though the mother and stepfather’s relationship with the child had improved, it was still in the child’s best interests to live with his father and stepmother. To support this decision, the Court pointed to Sullivan v. Knick, 38 Va. App. 773, 568 S.E.2d 430 (2002) which establishes that the trial court’s decision must remain in place, unless evidence demonstrates that the decision was plainly wrong. See also Parish v. Spaulding, 26 Va. App. 566, 496 S.E.2d 91 (1998) (holding that when deciding whether a child’s relocation is proper, the court must consider the child’s welfare as the primary concern). Therefore, the Virginia Court of Appeals summarily affirmed the Circuit Court’s ruling and held that physical custody would remain with the father.
You should consult with your Virginia child custody lawyer regarding the impact of a lack of co-parenting in your case.