Children - § 3-2 (F) - § 3-2 (I)

2000---Stockdale v. Stockdale, 33 Va. App. 179
The party requesting leave to remove children from state bears burden of showing that other parent’s relationship with children would not be substantially impaired.  (Affirmed 262 Va. 275)

1999---Parrish v. Spaulding, 257 Va. 357
Trial court did not err in refusing to enforce its previously-issued injunction against mother’s relocation with the children to Indiana, where requiring the children to return to Virginia was contrary to their best interests. While mother’s failure to abide by the trial court’s injunction subjected her to sanctions, father never requested sanctions.

1998---Parrish v. Spaulding, 26 Va. App. 566
A voluntary relocation of the children by the custodial parent does not bar that parent from thereafter seeking modification of the trial court’s order of custody; nor does the custodial parent’s action bar a motion seeking approval of the relocation retroactively. If the court could not retroactively approve a move or order a change in custody after an unapproved relocation has taken place, having before it evidence that the relocation or the modification of custody would be in the best interests of the children, the court would be required to act contrary to the best interests of the children.

1996--- DeCapri v. DeCapri, Va. Ct. of Appeals, Unpublished, No. 0446-95-2
Trial court did not err in denying mother’s motion for sole custody and permission to relocate from Virginia to Ohio. Father had a very close relationship with his daughter, actively supervised her progress in school and participated in school activities. Based on that evidence, the trial court correctly found that the benefits of Father’s relationship with the child could not be substantially maintained if Mother moved. Despite Mother’s contention that the financial and emotional support of her family in Ohio would allow her to better provide for the child while she pursued her education there, the evidence failed to show that her ability to provide support or pursue her education was impaired by remaining in Virginia, or that the financial support provided by Father pursuant to the parties’ settlement agreement was inadequate.

1996--- Bostick v. Bostick-Bennett, 23 Va. App. 527
A court may forbid a custodial parent from removing a child from the state without the court’s permission, or it may permit the child to be removed from the state. The child’s best interest is the criterion against which such a decision must be measured. Such a decision is within the court’s discretion.
To modify a decree denying a custodial parent permission to remove the child from the state, the court must find a material change of circumstance since the initial decree, and that relocation would be in the child’s best interests. The moving party bears the burden of proof.

1995--- Laing v. Walker, Va. Ct. of Appeals, Unpublished, No. 1693-94-3
Trial court did not err in finding a material change in circumstances based on mother’s intended relocation with the children to Egypt, despite fact that mother abandoned those plans prior to the hearing. Her decision not to relocate, after having made extensive plans to do so, constituted a change in circumstances in and of itself. Mother and her new husband had no source of income in the U.S., had found sources of income in Egypt, had informed the children that they were moving, and had begun educating the children with regard to their potential lives in Egypt. Thus, mother’s ability to provide continuing stability for the children became a critical issue, not only at the time she announced her plans to move, but also after she cancelled those plans.

1994---Hughes v. Gentry, 18 Va. App. 318
An anticipated relocation by custodial parent constitutes a change in circumstances warranting a review of custody.

1986---Scinaldi Scinaldi, 2 Va. App. 571
The added difficulty in maintaining a beneficial relationship between a child and a non-custodial parent should not be the sole basis for restricting a custodial parent’s residence except where the benefits of the relationship cannot be substantially maintained if the child is moved away from the non-custodial parent. 

1979---Carpenter v. Carpenter, 220 Va. 299
Mother’s request to move children to New York was denied as not being in children’s best interests based on following:
1.         Children were developing well where they resided;
2.         They were happy, well adjusted, and making good grades;
3.         Children had a close and affectionate relationship with both parents
4.         Both parents played an active role in the care, education, and development of their children;
5.         Father would suffer reduced visitation if move allowed;
6.         Mother’s expectations of increased income were questionable; and
7.         Cultural/educational advantages associated with move were not significantly greater.

      (G)  Modification of Custody

2016---Friedrichs v. Brown, Va. Ct. of Appeals, Unpublished, No. 1510-15-2
The trial court did not err in finding that Father failed to prove a material change in circumstances. Although the children had developed normally and matured since the prior order, those circumstances alone did not constitute a material change in circumstances. Additionally, although Father’s relationship with the children had strengthened since the prior order, the trial court found that Father’s increased bond with the children was attributable to the drafting of the prior order. Finally, although the parties were unable to get along and communicate regarding custody issues, such was the situation when the prior order was entered.

2015 – Groo v. Burton, Va. Ct. of Appeals, Unpublished, No. 0408-15-4
The trial court did not err in concluding that Father failed to prove a material change in circumstances had occurred since the prior custody order. Although Father had relocated overseas, and Mother had relocated within Virginia since the prior custody order, Father had returned to Virginia by the time he filed his motion to modify custody. Consequently, when Father filed his motion to modify custody, the parties were in similar situations as they were when the trial court entered the prior custody order.

2014---Azam v. Miah, Va. Ct. of Appeals, Unpublished, No. 0884-14-2
The trial court did not err in transferring legal custody of the child from Father and Mother to Father and Father’s parents. The parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most recent custody award. Here, Father overcame his burden by demonstrating that the child had lived with him and his parents for the child’s entire life, and that since the last court order, Mother had remarried, moved out of state, and had no physical contact with the child in nearly four years.

2014---Rush v. Carico, Va. Ct. of Appeals, Unpublished, No. 1462-13-3
Trial court did not err in holding that Mother did not meet her burden of showing a material change in circumstances based on the children’s “out of control” behavior where the evidence presented did not differ substantially from that of previous hearings and instead reflected persistent differences in the way the parents chose to deal with disciplinary issues.

2013--Engle v. Eberle, Va. Ct. of Appeals, Unpublished, No. 1206-13-4
The trial court did not err in considering the father’s sobriety in determining whether there was a material change in circumstances where the prior court order stated that the father had to “establish proof of his continuing sobriety and the suitability of his home for overnight visitation.” The prior court order established that a material change in circumstances must include the father’s sobriety. Under the law of the case, the father’s new residence alone, without proof of his sobriety, was insufficient to prove a material change in circumstances.

2012---Wilson v. Britton, Va. of Ct. Appeals, Unpublished, No. 2344-11-1
The trial court did not err in finding a change of circumstances warranting a change in custody to father. The mother failed to obtain required vaccinations for the child, obstructed father’s visitation, and consistently violated court orders.

2012---Turpin v. McGowan, Va. Ct. of Appeals, Unpublished, No. 2129-11-4
The trial court did not err in finding a material change in circumstances and awarding father primary physical custody as a result thereof. The mother had moved from Stafford County, Virginia to Sterling, Virginia, then to Vienna, Virginia. Witnesses testified that the child appeared intelligent, creative, fun and adventurous when in father’s care, but disengaged and “not an easy, outgoing child” while in his mother’s care. Evidence that mother drove through a snow storm to pick up the child rather than allow additional visitation was sufficient to demonstrate that mother would under no circumstances afford father additional time with the child. Moreover, mother felt father should have no custody at all, and on one occasion, wished that the father was dead. Evidence revealed that the mother had issues regulating the child’s medication and communicating with the father regarding the same.

2011--- Switzer v. Fridley, et al., Va. Ct. of Appeals, Unpublished, No. 1986-10-3
Trial court did not err in refusing to modify custody or visitation where the only evidence presented by father was (i) that his current wife was now available to assist him if he were to receive custody; and (ii) that the parties to whom custody had originally been awarded had intercepted and refused to allow the child to read correspondence from father. Father’s current wife had previously filed a protective order against him for the benefit of her own child. Moreover, father’s letters to the child encouraged the child to run away from the custodial parties, and stated that the father would have the custodial parties arrested.

2009---Harding v. Harding, Va. Ct. of Appeals, Unpublished, No. 1157-08-4
Trial court did not err in finding a material change in circumstances warranting a       modification of visitation, based on evidence that father’s relocation caused extensive travel time for the children and a correlating decrease in their academic performance, as well as evidence that the weeknight visitation schedule precluded the children from enrolling in extracurricular activities after school.  Court concluded that it was in the children’s best interests to reduce weekday visitation during the school year and increase visitation during the summer. 

2007---Sirney v. Sirney, Va. Ct. of Appeals, Unpublished, No. 0754-07-4
The trial court’s finding that there was a complete breakdown in communication between the parties that had led to an inability for them to co-parent was a proper consideration in determining whether there had been a material change in circumstances since the prior custody order.

2007---Kohut v. Osborne, Va. Ct. of Appeals, Unpublished, No. 2010-06-2
Trial court’s decision to change custody from Mother to Father based on a material change of circumstances was supported by credible evidence.  Mother physically assaulted the son.  During litigation Mother continually and inappropriately discussed the case and criticized Father despite admonishments from the court.  As a result of Mother’s recent conduct her relationship with her son had deteriorated.  In contrast, the evidence suggested the son felt safe and secure with Father.

2007---Place v. Roach, Va. Ct. of Appeals, Unpublished, No. 0768-06-4
The trial court did not abuse its discretion in ordering that custody be modified, placing sole custody in Mother.  There is no dispute that a change of circumstances occurred since the prior custody order.  The court specifically stated that it accepted Mother’s evidence about Father’s increasing tendency to exclude her from decision making regarding the children.  It further found that Father had interfered with Mother’s visitation, making it difficult for her to have telephone visitation, refused to allow the children to visit their ailing maternal grandfather, and inordinately delayed signing a document allowing Mother to have supervised visitation with the children.  The trial court also concluded that Father inappropriately excluded Mother from the children’s lives and expressed significant hostility toward her to the detriment of the children.

2006---Zinn v. Zinn, Va. Ct. of Appeals, Unpublished, No. 1331-06-3
Trial court did not err in finding a material change of circumstances in the child’s moving from preschool to grade school and that the best interests of the child would be served by a modification in the visitation schedule such that the child would be with Mother during the school week and would alternate between parents on the weekends.

2005--- D’Ambrosio v. D’Ambrosio, 45 Va. App. 323
Trial court did not err in altering a custody decree to grant medical decision making authority to the mother, despite the fact that neither party specifically requested such a change. Both parties mentioned an issue of “competing physicians” in their respective motions, and both parties included a general prayer that the court “grant such other relief as equity deems appropriate.” Furthermore, both parties addressed the issue of “competing physicians” in their opening statements. Because the relief was consistent with allegations in the petitions and arguments made at trial, and because Va. Code §20-108 gives the court clear authority to modify a custody decree in the best interests of the child, Father’s argument that he was “not on notice” that such medical decision making authority was at issue was meritless.

2005---Albert v. Ramirez, 45 Va. App. 799
In this case involving the modification of an existing valid custody order where Mother and Step-father shared joint legal and physical custody of the child, the party seeking the modification, the Mother, bore the burden of proving that a material change of circumstances had occurred since entry of the initial order and that a change of custody would be in the best interest of the child.  Circuit court improperly applied the actual harm analysis to the modification case.

2004---Sullivan v. Sullivan, 42 Va. App. 794
Upon reviewing a demurrer, the court will accept the facts alleged in the pleading as true to determine the legal sufficiency of the claim. If the facts, taken as true, allege a cause of action cognizable in Virginia and upon which relief can be granted, the demurrer should be denied.

2004---Merritt v. Gray, Va. Ct. of Appeals, Unpublished, No. 2003-03-4
Trial court did not err in concluding that parents of the child failed to establish that a material change in circumstances had occurred that was sufficient to alter grandmother’s previously awarded visitation.  Although the child was eight years older at the time of the hearing than he was when the original visitation consent order was entered, was involved in a growing list of activities, and now had three siblings and four other grandparents that occupied increasing amounts of his time, the evidence failed to show that visitation with the grandmother conflicted with his increased activities.  During visitation, grandmother ensured that the child made it to all scheduled activities. 

2003---Roberts v. Roberts, 41 Va. App. 513
Trial court did not err in granting mother’s motion to reduce father’s visitation to scheduled, telephonic visits only, based on evidence that father actively attempted to undermine the children’s relationship with their mother by repeatedly condemning and accusing her of being an adulterer and fornicator in the children’s presence, telling the children that she would go to hell, and referring to her as the devil when she called the children at his house. Father also threatened the children with damnation and accused one of the children of being a “spy.” The children feigned illness to avoid seeing the father, were visibly uncomfortable in his presence, and suffered academically prior to and immediately after visits with the father.

2002---Chittum, et al. v. Johnson, et al., Va. Ct. of Appeals, Unpublished, No. 0883-02-4
Testimony that “the child spends too much time in the car” as a result of an existing visitation schedule, without evidence that the time in the car had any adverse physical, emotional, psychological or social effects on the child, is insufficient as a matter of law to warrant modification of a visitation award.

1998 ---Etter v. Etter, Va. Ct. of Appeals, Unpublished, No. 0506-97-4
The trial court did not err in concluding that the parties’ inability to co-parent since the prior agreed-custody order constituted a material change in circumstances. The parties’ inability to cooperate sufficiently to co-parent was not contemplated by the agreement. The lack of effective communication and the inability to adequately consult and make joint decisions regarding the children undermined the original agreement to joint custody.

1996--- DeCapri v. DeCapri, Va. Ct. of Appeals, Unpublished, No. 0446-95-2
Mother’s acceptance into a community college program in Cleveland, Father’s remarriage, and the birth of another child to Father and his new spouse constituted material changes in circumstances since the last custody order.

1996---Juarez v. Juarez, Va. Ct. of Appeals, Unpublished, No. 1340-95-2
Mother’s continued questioning of her children regarding unsubstantiated allegations of sexual abuse by father, after the Department of Social Services ruled that the questioning amounted to emotional abuse and after the Court ordered that she discontinue said questioning, constituted a negative change in mother’s circumstances. The court did not err in denying mother’s motion to change custody of two children to herself, nor err in granting father’s motion to change custody of a third child to himself.

1996---Newland v. Neal, Va. Ct. of Appeals, Unpublished, No. 0390-95-3
Trial court erred in requiring mother to prove by clear and convincing evidence, rather than by a preponderance of evidence, the occurrence of a material change in circumstances warranting a change in custody.

1996--- Bostick v. Bostick-Bennett, 23 Va. App. 527
To modify a decree denying a custodial parent permission to remove the child from the state, the court must find a material change of circumstance since the initial decree, and that relocation would be in the child’s best interests. The moving party bears the burden of proof.

1995---Haase v. Haase, 20 Va. App. 671
Juvenile court decree is not binding upon the circuit court (subsequent action; not an appeal).  It was merely one factor to be considered.

1988---Peple v. Peple, 5 Va. App. 414 (1988)
The circuit court did not err in applying the “change in circumstances” test, rather than conducting a de novo hearing, when considering, incident to a divorce action, a request for modification of a prior juvenile court custody order which was not appealed to the circuit court.

1986---Turner v. Turner, 3 Va. App. 31
Where a non-custodial parent can show that a remarriage has stabilized, that the child has undergone changes and has expressed a preference in living with the noncustodial parent, a material change in circumstances has been shown.

Where one judge presides over a custody modification petition and a different judge presides over a subsequent modification petition, the second judge may consider evidence which was considered in the prior case for purposes of establishing “background” information and permitting the second judge to understand the alleged change in circumstances. Such evidence however, is not to be used to retry the issues resolved in the prior proceeding.

1983---Keel v. Keel, 225 Va. 606
The two-prong test for custody modification is as follows: “first, has there been a change in circumstances since the most recent custody award; second, would a change in custody be in the best interests of the children.”

The “change in circumstances” referred to in the first prong of the test is not limited to whether negative events have arisen at the home of the custodial parent. It is broad enough to include changes involving the children themselves such as their maturity, their special educational needs, and any of a myriad of changes that might exist as to them. It is also broad enough to include positive changes in the circumstances of the noncustodial parent such as remarriage and the creation of a stable home environment, increased ability to provide emotional and financial support for the children, and such other changes.

The overall aim of a court in a change of custody case must be to determine which home is best for the children. “Best” does not necessarily mean the most expensive home, or the one with the prettiest furnishings, or the one with the greatest number of creature comforts. “Best” is the home that will provide the children the greatest opportunity to fulfill their potential as individuals and as members of society.

      (H)  Natural Parents

2007---A.O.V. v. J.R.V., Va. Ct. of Appeals, Unpublished, No. 0219-06-4
Trial court did not err in imposing visitation restrictions on Father, a homosexual, which required him to be discreet in the presence of the children about his romantic relationship even though there had been no showing of harm or a specific danger of harm to the children.

2007---Duda v. Hunt, Va. Ct. of Appeals, Unpublished, No. 0511-06-4
Trial court did not err in granting Father’s petition to modify visitation rights.  The court assumed without deciding that Father met his burden of proving a material change in circumstances.  However, after considering the evidence, the trial court held that granting Father’s petition would not be in the best interest of the children.  The evidence demonstrated that Father had on occasion exhibited a lack of self-control and poor judgment in coaching the son’s sports teams.  Father placed an inordinate emphasis on winning and criticized the sons when they failed to perform up to his expectations.  Additionally, the sons had failed to complete homework assignments on the nights when they visited Father.

1954--- Judd v. VanHorn, 195 Va. 988
The parents of minor children are declared their natural guardians, and upon death of either parent the survivor shall be the natural guardian. Upon the death of a parent who has held custody under a divorce decree, the right to custody automatically inures to the surviving parent, provided of course, that the surviving parent is a fit custodian for the child.

 (I)  Visitation

2014---Pham v. Bui, Va. Ct. of Appeals, Unpublished, No. 1170-14-4
The trial court did not err by denying Father visitation with the child until Father’s and the child’s counselors recommended reunification where the totality of the evidence showed that Father lacked the ability to accurately assess and meet the child’s emotional needs, that Father had significant problems processing information, regulating his emotions, and controlling impulsivity, and that Mother and the child were fearful of Father.

2006---Rice v. Rice, 49 Va. App. 192
Trial court did not abuse its discretion in denying paternal grandparents petition for visitation rights based on the best interest of the child given that following visitation with the grandparents there was an exacerbation of child’s problem behavior.  Giving Mother the right to make the decisions about how things are handled with the child is in the best interests of the child because everybody, including the guardian ad litem, says that the child is suffering and has problems and difficulties.

2006---Zinn v. Zinn, Va. Ct. of Appeals, Unpublished, No. 1331-06-3
Trial court did not err in finding a material change of circumstances in the child’s moving from preschool to grade school and that the best interests of the child would be served by a modification in the visitation schedule such that the child would be with Mother during the school week and would alternate between parents on the weekends.

2005---Helmick v. Sprong, Va. Ct. of Appeals, Unpublished, No. 0454-03-1
Visitation with Father at prison denied.  Incarcerated Father denied access to child’s medical records.

1996---Thrift v. Baldwin, 23 Va. App.18
Grandparents and siblings have standing to seek visitation with children despite their adoption.

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