Order to revoke children’s Greek citizenship reversed

The trial court correctly awarded mother sole physical and legal custody of the parties’ children but erred by ordering father to take steps to revoke the children’s Greek citizenship. Mother never requested that relief in her pleadings.

Facts

The parties separated after a 15-year marriage and obtained a final divorce decree Nov. 2, 2018. The settlement provided for a temporary custody arrangement under which father and mother would have joint legal and physical custody.

Shortly after the divorce, father came to believe that an alleged extramarital affair between mother and Maan, her current husband, prompted the divorce. He obtained mother’s computer “and perused several emails between mother and Maan that contained sexual imagery and romantic discourse. …

“[F]ather hired a private investigator to follow mother and Maan and also sent both of them a number of explicit and accusatory emails outlining his disdain for them and their relationship.

“In addition, father compiled the sexualized photos sent by mother to Maan and mailed them to mother and Maan’s place of employment, Northrop Grumman Corporation, with accusations that the two were ‘embezzling’ the company’s resources by using those resources to advance their romantic relationship.

“Finally, in July of 2019, after learning that mother had taken the children to the wedding of Chris Kiriakou, an adult son of father from a prior marriage, father shattered a framed picture of mother’s grandmother and left the destroyed remains at mother’s doorstep.”

Prior proceedings

Mother responded with a petition and motion, seeking sole legal and physical custody and a psychological evaluation of father. The trial court ordered father to show cause and set that matter to be heard concurrently with the custody motion.

The court appointed Lane to conduct the psychological evaluation and to assist in the custody matter. In the interim, mother sought and obtained a two-year protective order against father.

Lane filed his report. The report “noted that both father and mother had ‘well-developed’ parenting skills and also detailed the children’s attachment to and affection for father and a desire to maintain the status quo with respect to his shared custody of them.

“Additionally, the report described the negative impact that father’s behavioral patterns had on the children. Specifically, the report outlined father’s habit of ‘denigrating’ mother’s character in the children’s presence, which Dr. Lane concluded has ‘had an enormously unhealthy effect on the children’s healing’ from the fallout of their parents’ separation.”

Despite this, Lane recommended that father and mother share joint legal custody and recommended a custody schedule for father. Lane also recommended a period of visitations with the children in a therapeutic setting, where ‘boots-on-the-ground work between [father] and the children occur … [which] can be monitored by the therapist, it can be adjusted by the therapist[,] and it can be reported by the therapist.’”

Although mother did not raise the issue of the children’s Greek citizenship in her pleadings, mother’s counsel asked her about it at the hearing. She responded that she wanted the court to direct father to take steps to revoke their Greek citizenship, which she claimed was secretly obtained. She expressed concern that father would leave the country with the children, and that the children could be subjected to service in the Greek military.

Father admitted that he obtained Greek citizenship for the children. He denied that mother was unaware of this and testified that she actually cosigned the necessary documents. He said Greek citizenship would allow the children to get European work permits and free college education. He also testified that the Greek government had waived the military service requirement.

The trial court ordered sole physical and legal custody to mother. Father’s visitations would take place with a therapist present. The court also ordered father to take steps to have the children’s Greek citizenship revoked.

Father appeals.

Discussion

Father argues it was an abuse of discretion for the court to disregard Lane’s recommendations, while conceding that the court was not bound by them. Further, the fact that Lane offered an uncontradicted opinion about custody did not bind the court to accept his recommendation.

The court did not improperly delegate ultimate authority over visitation matters to the children’s therapists. “[T]he child custody order requires the children’s therapists to monitor the children’s progress in therapy, determine whether a therapy session where father is present would further the children’s progress, and if so, to notify mother and give her the opportunity to either approve or disapprove of visitation between father and the children.

“In this way, it is mother, under the circuit court’s order, who now has the day-to-day responsibility of deciding whether the children will have visitation with father.”

Father argues that “the order unduly grants mother ‘veto power’ such that father may never have the opportunity to have visitation with his children if mother exercises such power in bad faith and against his interests. This Court disagrees.

“Contrary to his assertion, father’s status as the non-custodial parent does not bar him from inquiring of the children’s therapists as to whether they have made any recommendations as to visitation. In fact, Code § 20-124.6(A) provides for just the opposite. Specifically, it states that, ‘[n]otwithstanding any other provision of law, neither parent, regardless of whether such parent has custody, shall be denied access to the … health records … of that parent’s minor child unless otherwise ordered by the court for good cause shown[.]’ …

“Likewise, this Court finds no error in the trial court’s decision to give mother the responsibility of either approving or disapproving of the visitation recommendations given by the children’s therapists. Although it is conceivable that mother could proceed in bad faith and unduly disapprove the visitation recommendations offered by the children’s therapists, father’s appropriate recourse in that situation would be to seek a modification of the trial court’s custody and visitation order[.]”

The trial court did err by ordering father to take steps to revoke the children’s Greek citizenship. The “order was not based on any allegations or requests for relief made in mother’s pleadings.

“Under well-settled Virginia law, a ‘litigant’s pleadings are as essential as his proof, and a court may not award particular relief unless it is substantially in accord with the case asserted in those pleadings. Thus, a court is not permitted to enter a decree or judgment order based on facts not alleged or on a right not pleaded and claimed.’”

Affirmed in part and reversed in part.

Kiriakou v. Kiriakou, Record No. 0323-20-4, Oct. 13, 2020. CAV (Huff) from Arlington County Cir. Ct. (DiMatteo); Norman A. Thomas for appellant, Edward V. O’Connor for appellee. VLW 020-7-182, 18 pp. Unpublished.