A Carluzzo Rochkind & Smith note: Following is an article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your divorce and child custody lawyers should be familiar with. For more than 30 years our divorce and child custody lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
No modification of custody and visitation
By Virginia Lawyers Weekly – 5/31/2023
Where the trial court declined to modify its custody and visitation order to give father more time with the parties’ child, there was no error.
“Father argues that the trial court erred by not modifying the custody and visitation order and granting him more time with the [parties’ nine-year-old] child. …
“Father asks this Court to reconsider the evidence presented regarding the Code § 20-124.3 [best interest] factors. He contends that the trial court erred in its interpretation of the child’s testimony and gave it ‘improper weight.’
“The trial court heard three days of evidence, including testimony from mother and father, the child, and family friends and neighbors, including the child’s paternal grandmother and aunt, father’s girlfriend, and the child’s school counselor. It then considered each of the statutory factors in detail.
“The trial court focused on the child’s mental condition and her need for therapy, each parent’s ‘ability to accurately assess the emotional, intellectual, and physical needs of the child,’ their lack of cooperation in seeking therapy for the child, and the reasonable preference of the child.
“The trial court noted that the child’s preference was ‘only one factor’ and ‘not dispositive.’ The trial court found that the child believed that father’s request for changes in visitation was ‘too quick, too fast’ after his return from Iraq.
“Thus, after considering all the evidence, the trial court found that it was in the child’s best interests to ‘maintain’ the existing custody and visitation arrangements. …
“There is credible evidence in the record that supports the trial court’s finding that it was not in the child’s best interests to modify custody or visitation. ‘Because the record contains evidence in support of the court’s findings, we are precluded from retrying the facts or reweighing the factors.’”
“Father asserts that the trial court’s ruling offered him ‘no mechanism for any future evaluation or determination of whether [the child] would be ready in the future for additional time’ with father. The trial court, however, had ‘expressed [its] hope that there would be a transitionary period” and that “things could get into a situation where he had more time.’
“Nevertheless, the trial court first required the child to attend therapy and work on her relationships with both parents, but especially father. Furthermore, ‘under Code § 20-108, the parties and the court retain the ability to modify visitation with minor children in the future. This statute is an avenue for the non-custodial parent to seek increased visitation in the event the custodial parent is not accommodating.’”
“Father argues that the trial court erred in awarding mother final decision-making authority over the child’s medical matters. … Father contends that mother ‘never placed decision-making authority at issue.’ He asserts that he was ‘unaware that his right to help decide [the child’s] medical treatment was at risk.’
“Both parties, however, had requested ‘tie-breaking authority’ in their respective motions to modify custody and visitation. Both also had requested ‘any further relief as [the court] deems just and appropriate.’ …
“It is clear from the record that the issue of making decisions regarding the child’s therapy was before the trial court. …
“Code § 20-124.1 authorizes a trial court to modify joint legal custody when the court deems it to be ‘in the best interest of the child.’ The trial court found that therapy would be beneficial for the child and her relationship with her parents, especially father.
“The trial court further found that there was not ‘a good reason why this child did not go to therapy.’ Mother had testified that she believed that father used ‘his legal custody as a bargaining chip’ and prevented her from taking the child to therapy.
“In order to break this impasse regarding therapy for the child, the trial court ordered that mother would be the one making medical decisions for the child. We find no abuse of discretion in the trial court’s resolution of the problem presented by the parties’ inability to resolve their differences.
“[T]he trial court explained at the outset that its practice was for children to testify in open court, as opposed to in chambers. Mother offered for a counselor to testify about the child’s preference, but father did not consent to that compromise.
“Father argued that it was not in the best interests of the child to testify, and he relied on the school counselor’s testimony that the child was ‘nervous’ about testifying. Father’s argument that testifying would be ‘detrimental’ to the child was ‘speculative.’ …
“The trial court found that the child’s nervousness was ‘understandable’ but did not prevent her from appearing in court. Once the child appeared in open court, the trial court questioned her and found that she was of sufficient maturity and understanding to express her views regarding the situation.
“Neither mother nor father objected to the trial court’s finding regarding the child’s competency. The trial court allowed the child to testify and heard that she preferred to live with mother and visit father when she wanted.
“At the conclusion of the child’s testimony, the trial court found that the child seemed ‘comfortable in the proceedings’ and it was ‘helpful to see what the child’s view is.’
“The trial court further found that it did not appear that anyone ‘coached’ the child when she testified. There is credible evidence in the record to support the trial court’s finding that the child was of sufficient age and maturity to testify and the trial court did not err in having her testify in open court.”
Powell v. Knoepfler-Powell, Record No. 0853-22-4, May 16, 2023. CAV (unpublished opinion) (Fulton III). From the Circuit Court of Fairfax County (Bernhard). James B. Kinsel for appellant. Sharon Voyles for appellee. VLW 023-7-171, 22 pp.
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