Virginia Lawyers Weekly VA Lawyers Weekly
Where the child’s mother, father and grandmother had legal custody, and the grandmother had primary physical custody, mother’s physical custody petition is denied. Although there has been a material change in circumstances, the child’s best interest is served by continuing primary physical custody with the grandmother.
Background
Rowe is L.D.’s mother. Dessi is her father. L.D. is eight years old and is in third grade. The JDR court awarded joint legal custody to mother, father and L.D.’s paternal grandfather under an agreed order. The February 2020 order was prompted, in part, by “Mother’s financial burdens and inability to adequately care for L.D., as well as Father’s frequent out-of-town work commitments[.]”
The JDR court issued an agreed visitation order. Mother remarried soon after the order and had a child with her new husband.
“Mother filed custody and visitation petitions on February 22, 2021, after Grandmother’s live-in boyfriend was charged with possession of child pornography and possession of methamphetamines, the latter of which was subsequently dismissed.
“Grandmother subsequently had two major surgeries and recovery periods, during which time the parties agreed that Mother would care for L.D. On August 26, 2021, the JDR court found that there was a material change in circumstances and continued the matter to October 28, 2021, at which time the court dismissed both petitions.
“Mother appealed the JDR court’s dismissals to this Court. …
“Before L.D. was born, Mother had another daughter, A.D., whom Blanchard; A.D.’s-and L.D.’s maternal grandmother, adopted many years ago. Although Blanchard and Mother refused to communicate or maintain any kind of relationship with one another until recently, L.D. and A.D. were able to see each other while L.D. lived with Grandmother due to arrangements made by Grandmother and Blanchard.
However, Blanchard has recently refused to cooperate with Grandmother for L.D. and A.D. to spend time together – ostensibly in a show of support for Mother after Blanchard and Mother reestablished their relationship.
“Mother petitions for primary physical custody of L.D., which Father and Grandmother oppose. Father supports Grandmother retaining primary physical custody. Although Mother and Grandmother oppose each other’s position regarding custody, they have been attempting to coparent.
“L.D. allegedly has expressed interest in living primarily with Mother, although the Court gives very little weight to L.D.’s preference based on her age.”
The court conducted a de novo trial and now rules on the custody petition.
Material change
“There must be a material change in circumstances since the most recent court order for a court to consider a change of custody. …
“Since the February 2020 custody order, Mother remarried and is more financially stable.
“Mother and her husband also have a new baby. Mother has returned to work, and her husband works the night shift.
“The guardian ad !item … initially recommended a custody change to Mother having primary physical custody because, at the time, Grandmother’s live-in boyfriend, Jesse Boyles, had been charged with possession of child pornography and possession of methamphetamines; the latter charge was subsequently dismissed.
“Boyles pleaded guilty to four counts of possession of child pornography and is serving a three-year active sentence. It appears that Boyles is entirely out of the family’s lives.
“In light of the above, the Court finds that there is a material change in circumstances.”
Custody factors
The court has evaluated the custody factors in Code § 20-124.3 and concludes that L.D’s best interests are served by continuing primary custody with grandmother. “Under the circumstances here, where Grandmother had a prior custodial order regarding L.D., ‘each parent’ as used in the statute refers to Mother and Grandmother.
L.D. has several health issues including asthma, attention deficit disorder and an eye disorder that requires her to wear an eye patch. There have been some academic difficulties but she “has no other apparent developmental delays, and the parties agree that she otherwise appears to be well-adjusted.”
The court notes that both mother and grandmother are in good physical and mental health. Both are employed. Grandmother had major surgeries in 2021 and 2022. Mother cared for L.D. during grandmother’s hospital stays.
“Mother, father and grandmother appear to have a loving relationship with L.D. and want to do whatever is best for her. … L.D. benefits from Grandmother, Mother, and Father being involved in her life to the extent possible. Both Grandmother and Mother have extended family in the area. …
“The Court believes that Grandmother, Mother, and Father will play an active role in L.D.’s continued upbringing.” However, “Grandmother and Mother appear to oppose the other’s position and seem to dislike one another greatly.
“The Court has significant concerns that this dislike for one another could adversely affect L.D., especially L.D.’s ability to interact with other family members.”
The guardian ad litem has recommended a change in custody. “[T]he GAL appears troubled primarily by (1) the charges against and subsequent conviction of Boyle, (2) Grandmother’s two surgeries, (3) Grandmother’s unfamiliarity with L.D.’s medical provider, (4) Grandmother’s alleged failure to ensure L.D. wore her eye patch consistently, and (5) L.D.’s recent academic performance.
“The Court notes, however, that the GAL reported that ‘[Grandmother] has done a very good job of providing [L.D.] with stability’ despite being a single parent. Additionally, Mother currently is able to coordinate L.D.’s visits with those of her husband’s sons, so L.D.’s visitation with her step-brothers does not impact the custody determination.”
In addition, Boyle is serving a jail term and there was no evidence that grandmother “intends Boyle to play any continued role in her life.” Grandmother’s medical issues have resolved, and grandmother and mother have agreed that mother will take L.D. to her medical appointments. L.D. no longer needs an eyepatch and her academic difficulties are being appropriately addressed.
Ruling
“The Court – after considering all of the evidence presented, the statutory factors enumerated above, and the GAL’s recommendations – concludes that the best interests of L.D. support no change in the current custody arrangement. …
“Mother’s petition for primary physical custody of L.D. therefore is denied. The Court also finds that, although it is a change to the current arrangement, Grandmother – as the custodial parent – shall have primary responsibility for L.D.’s medical appointments.”
In re: L.D., Case No. CJ21-177, June 17, 2022, City of Norfolk Circuit Court (Lannetti). Barbara T. Hanna, Jeffrey M. Harding for the parties, Katherine Currin, guardian ad litem. VLW 022-8-030, 9 pp.
