Custody and visitation changes upheld

The trial court correctly awarded mother sole legal and primary physical custody of the parties’ minor child and limited father’s visitation to two two-hour supervised visits per month.

Background

The parties’ minor child is diagnosed with high functioning autism. As part of their divorce settlement, the parties agreed to custody and visitation matters. The parties would share legal custody. Mother would have primary physical custody. Father would have four-hour visitation twice a week and an overnight visit, along with “reasonable phone visitation.” The JDR court entered a consent order in August 2011.

After several years, the parties raised issues “regarding compliance with visitation orders[.]” A guardian ad litem was appointed for the child. Ultimately, the circuit court modified the 2011 order. The modification was entered in June 2016 and the matter was remanded to the JDR court.

After father sought a show cause order, the JDR court made further modifications in a March 2017 order. In early 2018, the parties filed competing motions to modify custody and visitation. After a JDR court hearing the court reappointed the previous guardian ad litem.

“On June 5, 2018, the JDR court conducted an ore tenus hearing on the competing motions. As a result of the hearing, the JDR court made certain factual findings and entered an order granting mother sole legal and physical custody but maintaining father’s in-person visitation while specifying further conditions as to in-person and telephone visitation and payment of medical expenses.”

Father appealed and made a motion in limine to remove the guardian “for cause.” Father asserted the guardian was biased, did not provide him notice that she had been reappointed, “appeared to collude with mother’s counsel, and acted contrary to professional standards.”

While this motion was pending in the circuit court, father was charged with two felony sex crimes “related to a child under fifteen years of age.” The guardian filed emergency motions to suspend father’s visitation and undergo a psychological evaluation. In response, the court limited father’s visitation to two two-hour sessions of supervised visitation in a public place. The court denied the requested psychological evaluation.

The circuit court held a hearing on father’s motion to remove the guardian and his motion for disclosure of mother’s medical records. The court denied the motion. Father’s underlying appeal of the JDR court’s order was delayed pending resolution of the charges lodged against him. “Ultimately, he was convicted of violating Code § 18.2-374.3, which criminalizes the use of communication devices to solicit a minor for sexual purposes.”

The circuit court conducted a trial de novo. Father sought a continuance because he wanted the child and the child’s autism specialist to testify, while admitting that he never subpoenaed either of them as a witness. The court denied the motion and told father he could either proceed or if not prepared, the court could dismiss the case and remand to the JDR court so father could file a new motion to modify custody and visitation.

Father chose to proceed. Father and mother both testified, as did Vadas, who supervised father’s in-person and telephone visits. The guardian ad litem told the court that in terms of the child’s preferences, the child indicted that she only wanted to see her father once a month and did not want to visit at his home.

“The circuit court concluded that the best interests of the child would be served by continuing visitation in a public space with a professional supervisor. The visits were to continue to occur in two-hour sessions twice a month. … Visitation was to be suspended in the event of father’s incarceration.”

Father appealed.

Rulings

Father asserts that the circuit court failed to require the guardian ad litem to provide evidence that “she was properly re-appointed. However, his argument does not address the guardian’s appointment in the circuit court, but rather, is a complaint that the guardian did not show him the JDR court order appointing her to serve as guardian prior to the JDR court trial.

“Thus, although he styles it as an error of the circuit court, this portion of father’s challenge regarding the guardian is to the actions of the JDR court related to the guardian’s conduct in that court. … Accordingly, the issue presented by father is not properly before us.”

Father argues the guardian was improperly allowed to testify as an expert on mental fitness. But father did not object in the circuit court, so his argument is waived on appeal. Her also complains that the guardian did not act in accordance with ABA professional standards but points to no action by the circuit court that can be appealed.

Father asserts the court erred by not removing the guardian. The circuit court, as the trier of fact, was free to disbelieve father’s evidence regarding the guardian’s behavior. The record supports the circuit court’s decision nor to remove the guardian.

The motion to continue trial was correctly denied. “Father had more than sufficient time to subpoena the witnesses and to seek a formal custody evaluation, and he provided no compelling reason for his failure to do so.”

Father raises a hearsay argument regarding the guardian’s testimony about the child’s preferences. Even assuming there was error, any error was harmless. “[T]he guardian’s statements relaying the child’s preferences ‘had but slight effect’ on the circuit court’s ultimate ruling. Sources other than the guardian’s statements revealed the child’s preferences. During their testimony, both mother and Vadas gave testimony supporting a conclusion that the child wished to see father less frequently. Father did not object to this testimony, and therefore, it was proper for the circuit court to consider it.”

Affirmed.

Achin v. Ochoa, Record No. 1466-19-4, July 28, 2020. CAV (Russell) from Alexandria City Cir. Ct. (Kemler) Norman Achin, pro se, Ashley Kempczynski, Ellen M. Dague, guardian ad litem for the minor child, Timothy Bryan Beason; Dipti Pidikiti-Smith; Legal Services of Northern Virginia, on brief), for appellee. VLW 020-7-165, 21 pp. Unpublished.