Can a parent lose primary custody of a child to ex-spouse by not cooperating with visitation and court ordered evaluations even though ex-spouse had threatened to commit suicide in the past?
In an unpublished opinion, the Virginia Court of Appeals affirmed a trial court’s decision to change primary physical custody of the parties’ child after mother failed to communicate with father, tended to deny visitation, and did not properly communicate with a court ordered psychologist. Belcher v. Belcher, No. 2310-09-1, (April 13, 2010) http://www.courts.state.va.us/opinions/opncavwp/2310091.pdf .
In Belcher, the ex-husband father and ex-wife mother had joint legal custody, with mother having primary physical custody of the parties’ child. The custody arrangement was established in part due to threats made by the father to commit suicide when the parties separated. The father received treatment and progressed from supervised to unsupervised visitation. Additionally, the father cooperated with a custody and psychological evaluation, while mother did not cooperate and tended to deny visitation.
A psychologist who performed a custody evaluation of the parents testified in the Virginia Circuit Court that mother had a tendency to deny visits to ex-husband father and failed to properly schedule court-ordered home visits. After these events, the psychologist prepared an updated custody report in which he recommended joint legal custody, with primary physical custody to father. The psychologist testified that he did not believe that the father’s prior psychological problems remained an issue. A guardian ad litem (GAL) for the child also testified in trial court that mother’s non-cooperation with father was not in the best interest of the child. After hearing all the facts, the Virginia Circuit Court judge held that the parties would have joint legal custody with primary physical custody to father.
Mother argued in the Virginia Court of Appeals that the trial court ruled that father should be the custodial parent in order to punish mother for the miscommunication between her and the psychologist in scheduling home visits. However, the Appellate Court held that there was no evidence the custody ruling was punitive to the mother. The trial court noted that the mother’s testimony and the evaluating psychologist’s testimony conflicted as to whether they had scheduled an appointment for him to conduct a home study, but his testimony was not impeached when he testified that he gave notice. Despite this mention of the miscommunication between mother and the psychologist, the trial court stated it took all the factors into account [including factors enumerated in Code § 20-124.3 https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-124.3], with no one factor more important than the other when it determined the child’s best interests would be served if father had physical custody.
The Virginia Court of Appeals held that the trial court had not abused its discretion in changing primary physical custody to father and that the trial court considered all of the Code § 20-124.3 factors, with “no one factor necessarily more important than the other.” http://scholar.google.com/scholar_case?case=16363639353900919376&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
You should consult with your Virginia family law lawyer to discuss whether you can modify an existing custody order.