Children’s best interests considered in visitation order

Where the JDR court’s visitation ruling specified only “reasonable visitation” for father, the circuit court properly imposed a specific visitation schedule. The court had the authority to do so despite striking father’s evidence concerning changed circumstances.

Further, despite mother’s contrary argument, the court considered the children’s best interests when establishing the visitation schedule.

Background

When the parties divorced, they had three minor children. The Portsmouth Juvenile & Domestic Relations District Court issued a custody and visitation order on Dec. 8, 2015. Mother lived in Portsmouth. Father was stationed at Fort Bragg. The order gave mother primary physical custody, granted father “reasonable visitation” and gave the parties joint legal custody.

Father remarried and retired from the military and relocated to Fredericksburg. The parties could not agree on visitation. Father moved for primary custody and asked the circuit court to set a specific visitation schedule for mother.

The circuit court ruled that father did not show there were changed circumstances to modify the custody order. However, the court did set a specific visitation schedule for father. Mother appealed.

Visitation

“Mother argues that because there was no material change in circumstances, the circuit court was not permitted to modify the existing visitation order. Her argument is based upon a false premise because the December 8, 2015 order is not a visitation order within the meaning of Code § 20-124.2(A).

“That statute provides that ‘the court shall provide prompt adjudication, upon due consideration of all facts, of … visitation arrangements … prior to other considerations arising in the matter.’ … (emphasis added). …

“The J&DR court that crafted the 2015 custody order did not judicially decide when and where each parent could visit the children, and thus, never adjudicated the specifics of visitation. The J&DR court simply left it to the parties to determine the matter.

“In sharp contrast, it did adjudicate which parent should receive primary physical custody and decided that both parents should retain legal custody.

“Mother argues that, under Keel v. Keel, 225 Va. 606 (1983), the visitation schedule ordered by the circuit court was a modification of the December 8, 2015 order. The test for determining whether modification of a child custody or visitation award is appropriate has two prongs: first, the circuit court must determine that a material change in circumstances occurred and second, it must determine that changing the custody and visitation order would be in the best interests of the children. …

“On September 20, 2018, father sought specific changes to custody and visitation that resulted in a new J&DR court order on May 8, 2019, which, for the first time, actually adjudicated the issue of visitation. On May 15, 2019, father appealed the May 8, 2019 J&DR court order to the circuit court, rendering it a nullity under the principles of de novo review. …

“Therefore, when father’s appeal reached the circuit court, there was no prior judicially-adjudicated visitation schedule in effect in this case to serve as a subsequent basis for a determination of whether a material change had occurred since such adjudication.

“Thus, the visitation schedule ordered by the circuit court on July 24, 2020 was not a modification since there was no prior court-ordered visitation schedule to modify. Upon appeal, the circuit court did not amend the father’s visitation rights but rather judicially determined, for the first time, what parenting arrangement constituted ‘reasonable visitation.’

“Accordingly, the circuit court’s July 24, 2020 order did not require application of the Keel test. The first actual visitation order in this case was entered on July 24, 2020, when the circuit court crafted a parenting schedule that set forth specific visitation times. …

“[I]n the absence of a judicially-approved visitation plan to modify, the circuit court was necessarily required to determine ‘reasonable visitation’ with specificity and promulgate an appropriate schedule. For these reasons, we conclude that the circuit court did not err in setting a visitation schedule for father in this case.”

Best interests

“Mother’s second assignment of error alleges that the circuit court did not consider the children’s best interest pursuant to Code § 20-124.3 based solely upon the fact that mother did not present any evidence. …

“At the close of the father’s case, mother made a motion to strike, stating, ‘I don’t believe that Mr. Burgess has established that there’s been a material change in circumstances since the last order, a material change that actually impacts the best interests of the children.’ The circuit court agreed and did not hear any further evidence save for testimony from the guardian ad litem.

“However, after granting the motion to strike, the court stated, ‘But I think there needs to be some visitation changes. It’s in the best interest of the child for the mother to have primary [physical custody] with joint [legal] custody to the father.’ (Emphasis added).

“Mother argues that because the circuit court struck father’s evidence, there was no evidence that could support a determination of the best interests of the children for visitation purposes. However, it is important to note the context of the circuit court’s action.

“Father sought a change in custody and visitation, asserting a material change in circumstances. In striking father’s evidence, the circuit court specifically limited its ruling to a failure on the part of father to carry his burden to show a material change in circumstances. …

“[T]hat ruling by the circuit court does not affect the ability of the court to judicially establish an initial visitation schedule, nor does it render the circuit court’s decision plainly wrong regarding the best interests of the children. The record reflects that the circuit court explicitly considered the best interests of the children.

“There simply is no requirement in Code § 20-124.3 that both parties must present evidence before the circuit court may determine whether a modified award is in the best interest of a child or children. A lack of evidence by one party in an award modification hearing, in and of itself, does not signify that a circuit court did not consider the best interests of the children.”

Affirmed.

Burgess v. Burgess, Record No. 0946-20-1, March 16, 2021. CAV (Humphreys) from Portsmouth City Cir. Ct. (Moore). Camelou G. Aloupas for appellant, No brief or argument for appellee. VLW 021-7-033, 9 pp. Unpublished.