Custody Change Back to Mom in Virginia

Deborah Elkins//February 22, 2013

Custody Change Back to Mom in Virginia

Deborah Elkins//February 22, 2013

Although the court has great respect for the opinion of the guardian ad litem, who recommends that two boys, ages seven and five, remain in the custody of the father who moved them to Pennsylvania, the Roanoke County Circuit Court orders physical custody returned to the mother in Roanoke, as the court finds the father did not act in the children’s best interests in moving them to Pennsylvania, failing to comply with a court order requiring individual counseling for the children and quitting his job and misrepresenting the reasons for doing so.

The answer to whether a change in circumstances occurred is clearly yes. The changes include, but are not limited to, the fact that the children made physical and sexual abuse allegations against father; that mother withheld visitation as a result of those allegations; that the oldest child recanted some or all of his allegations and the investigation into those allegations ended; that mother continued to withhold visitations as the investigation, although ended, had not been fully completed; that the children were unilaterally moved to Pennsylvania; that father took the oldest son out of individual counseling and never put him back into it; that he quit his job in Northern Virginia after having been demoted from vice principal to a classroom teacher because of serious misconduct; that father quit his job and works part-time as a lecturer; that father has voluntarily drastically reduced his income; that he moved his children into his girlfriend’s house to live with her three children and an elderly aunt; that father took the oldest child from school in Roanoke County and three weeks later enrolled him in a Prince William County school and then, two weeks later took him out of that school and moved him to a school in Pennsylvania; that father later married his girlfriend; that months after his move to Pennsylvania, father placed his children in family counseling so they could get over their difficulties trying to merge themselves into their stepmother’s existing family, a counseling program that was not anywhere near the counseling ordered by the JDR court as a requirement of the custody change; and that the move increased the children’s travel time for alternate weekend visitations with mother from eight hours round trip to 16 hours round trip. These were all material changes in circumstances, individually and collectively.

The recommendation of the guardian ad litem was that it was in the best interests of the children to remain in the custody of the father. He made this recommendation after having heard all the evidence in this case, and having visited the children in their father’s new home in Sayre, Pa., and in his former home in Woodbridge, Va. He also visited with them in the mother’s home in Roanoke. The court has great respect for the opinion of the GAL. His advice and observations in previous custody cases before this court have frequently, although not always, tipped the balance in favor of his recommendation. In this case, his questioning of the witnesses was professional, insightful and thorough. He frequently caused the court to concentrate and not overlook specific considerations dealing with the parties and their testimony. In this particular case, however, the GAL and the court simply saw the evidence differently. The court’s decision in this case is contrary to the recommendation of the GAL.

The court finds, as a matter of fact, that the relocation of the children to Pennsylvania was and is, not in the best interest of the children. The move was made solely for the benefit of father. If the children received an advantage from the move, it was incidental and minor, and certainly did not outweigh the harm done to them by moving so far from mother; by father’s refusal to comply with the very necessary order to place the children immediately into individual counseling; by father trying to integrate them into his new Pennsylvania family, causing psychological or behavioral problems with the children that still require continued family counseling; and by father quitting his full-time job and remaining virtually unemployed, or at least mostly unemployed, for the past approximate year and a half. The transfer of custody back to mother will not impair the beneficial relationship between the children and father. The children appear to be well-bonded to both parents, but closer to mother. Father, being the moving party in the transfer of custody from mother and in the relocation of the children to Pennsylvania, did not come anywhere near to bearing the burden of proof necessary to prevail. Father’s deliberately tardy request to relocate the children is denied. They will be returned to Virginia immediately.

The misleading testimony of father concerning his employment status, his intent to remain with the children in Virginia and his intent to continue the individual counseling for the children, certainly influenced the JDR court to award custody to the father. The court finds father did not have the best interests of the children in mind when he failed to comply with the condition of custody to put the children into individual counseling; when he moved to Pennsylvania and caused the children to double their travel time for visitation to 16 hours every other weekend; and when he quit his job, most certainly lowering his children’s standard of living. The mother will have primary physical custody and the parties will continue to have joint legal custody.

Heffron v. Heffron (Doherty) No. CJ 11-89 & 95, Feb. 20, 2013; Roanoke County Cir.Ct.; Gordon H. Shapiro, Burton L. Albert, John T. Molumphy for the parties. VLW 013-8-017, 14 pp.

VLW 013-8-017


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