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‘Actual harm’ not the standard for mom’s move

A mother gets another chance to prove her move to Pennsylvania was good for her seven-year-old son, after the Virginia Court of Appeals reversed a custody change to the father.

The trial court applied the wrong legal standard when it used the “actual harm” test instead of the “best interests of the child” test to gauge the effect of the relocation, the appellate panel said in its Nov. 29 unpublished opinion.

When the couple divorced in April 2010, they had a mediated agreement that provided for joint legal custody, with primary physical custody with the mother and weekly visitation for the father. The parties also agreed there would be advance written notice of a change in address.

By July 2010, Heather Garner faced serious financial difficulty, as her income as a cosmetologist had declined and the father did not regularly pay child support. She did not have a dependable car and she feared eviction. She moved with their child from Frederick County to her mother’s home in Pennsylvania, two and one-half hours away.

On the father’s motion, the juvenile and domestic relations court awarded temporary physical custody to Mitchell Ruckman “for school purposes” and continued the case. In October 2010, the JDR court said the mother’s move was not in the child’s best interests and physical custody would remain with the father. The court said if the mother moved back to Winchester or Frederick County within 30 days, the mediated custody order would remain in force.

When the mother appealed, Frederick County Circuit Judge John R. Prosser held “there was no actual harm to the child … by his father having custody” and there was “no benefit to the child” from the mother’s move.
Garner met her burden to show a prima facie case that the relocation was in the child’s best interests, and the trial court erred in granting the father’s motion to strike Garner’s evidence, wrote Judge Sam W. Coleman III in the unanimous panel decision.

The trial court record also did not show the trial judge considered all the factors in Virginia Code § 20-124.3 in assessing the child’s best interests.

In deciding to remand the custody case in Garner v. Ruckman (VLW 011-7-371(UP)), Coleman said the existing record warranted another look.

Garner had been the child’s primary custodian since birth, he had a close relationship with a half-brother with whom he had grown up and a good relationship with his two stepsisters. Since moving to Pennsylvania, Garner had remarried and was a stay-home parent.

The mother expressed concern about the child’s safety when with the father, saying he did not use a booster seat and did not seek medical attention when the child has a nosebleed and cold sores on his mouth. The father lived with a girlfriend and had a history of instability, including a criminal record, previous drug addiction, unemployment and anger management problems.

Coleman also pointed out the record indicated the mother encouraged the son’s relationship with his father by agreeing to expanded visitation in 2010, but that same year, the father denied the mother a chance to see her son on Christmas Eve or Christmas Day.

Although the guardian ad litem agreed with the father the mother’s move had only benefited her and did not help her son, Coleman pointed to case law that suggests a trial judge can count benefits accruing to a parent after relocation as also working in favor of the child. In short, a happier parent can make for a happier child.

The panel remanded the case for further proceedings.

Winchester lawyers represented the parties in the case. Marilyn Ann Solomon represented the mother and Phillip S. Griffin II represented the father, while Anne M. Williams served as guardian ad litem for the child.

VLW 011-7-371

Virginia Lawyers Weekly
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