David Dolan v. Tina Dolan

• Court: Court of Appeals of Virginia
• Decided: November 28, 2000
• Docket: 1188001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Frank and Clements

DAVID DOLAN MEMORANDUM OPINION * v. Record No. 1188-00-1 PER CURIAM NOVEMBER 28, 2000 TINA DOLAN

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Philip L. Russo, Judge

(Cheshire I'Anson Eveleigh; Wolcott, Rivers, Wheary, Basnight & Kelly, P.C., on brief), for appellant.

(Debra C. Albiston; Kaufman & Canoles, P.C., on brief), for appellee.

David Dolan (husband) appeals from an order entered by the

circuit court. He contends the trial court abused its discretion

by refusing to allow him to remove the parties' minor children

from Virginia to Indiana. Upon reviewing the record and briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

See Rule 5A:27.

Background

By decree entered January 8, 1999, the trial court granted

the parties a divorce and awarded the parties joint legal

custody of the two minor children. Husband received sole

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. physical custody of the children "subject to full and reasonable

rights of visitation being reserved" for wife. The trial court

ratified, affirmed and incorporated in the decree a stipulation

and agreement dated December 10, 1998, in which the parties

agreed that "[v]isitation shall include three consecutive

weekends to Wife, . . . then one like weekend to Husband." Wife

also received "two two-week non-consecutive visits with the

children each summer." In addition, the parties prepared a

detailed visitation schedule for holidays.

On April 23, 1999, wife filed a petition in the juvenile

and domestic relations district court seeking primary physical

custody of the minor children in anticipation of husband's

recent decision to move to another state and take the children

with him.

On January 12, 2000, the trial court conducted a hearing

and heard evidence on husband's request to relocate the children

to his hometown, Michigan City, Indiana, and on mother's request

for physical custody to prevent husband from removing them from

Virginia.

Husband lives with the two children in Virginia Beach.

Wife pays child support and lives in northern Virginia. She

regularly travels to Virginia Beach for visitation. Wife has a

daughter from another marriage with whom the minor children have

a close relationship. Wife explained that when she travels to

Virginia Beach, she has a room at the home of a couple that have

- 2 - known the children since birth and with whom the children are

very close.

Husband and wife described their respective employment

situations and their involvement with the children. They

identified and discussed persons who are available to help care

for the children. Husband described his employment history, the

job he was offered in Michigan City, Indiana, his hometown, and

the advantages of having many relatives in Indiana to assist him

with the children. The evidence demonstrated that the greater

distance between Indiana and northern Virginia would reduce the

number of visits wife presently is able to manage.

Dr. Kollar, a child psychologist, testified that the

children love both parents. She agreed that it was important

for the two young girls, born in 1992 and 1994, respectively, to

have frequent contact with their mother. Dr. Kollar also

explained that the youngest child has difficulty being away from

husband for long periods and that, under the present visitation

scheme, husband is available if needed.

Permanently Removing a Child from Virginia

"A court may forbid a custodial parent from removing a child from the state without the court's permission, or it may permit the child to be removed from the state." It is well settled that the child's best interest is the criterion against which such a decision must be measured. Such a decision is a matter of discretion to be exercised by the court, and, unless plainly wrong or without evidence to support it, the court's decree must be affirmed.

- 3 - Bostick v. Bostick-Bennett, 23 Va. App. 527, 533, 478 S.E.2d

319, 322 (1996) (quoting Scinaldi v. Scinaldi, 2 Va. App. 571,

573, 347 S.E.2d 149, 150 (1986)).

In considering whether relocating will be in a child's best

interest, the court must consider whether "the benefits of the

[parent-child] relationship can[] be substantially maintained if

the child is moved away from the non-custodial parent" and, if

not, the relocation may not be in the child's best interest.

Scinaldi, 2 Va. App. at 575, 347 S.E.2d at 151.

Factors that a trial court should consider in determining

whether a move from Virginia is in the child's best interest

include: the relative economic advantages and disadvantages

between the two locations; the educational and cultural

opportunities available at both locations; the presence and

availability of extended family members or support persons to

assist the parent at both locations; the present physical,

emotional and cognitive development of the children in their

present Virginia location; the present involvement and roles

played by the respective parents in the care, education and

development of the children; and the effect on visitation by the

noncustodial parent if the move were allowed. See Carpenter v.

Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 848 (1979).

After hearing extensive evidence from numerous witnesses,

the trial court concluded that the best interests of the

children would not be served by allowing husband to remove them

- 4 - from Virginia and relocate them to Indiana. The trial court

explained:

There is no doubt in my mind . . . that the children would have a close relationship with [husband's] relatives in Michigan City, but that's not the question. The question is, is it more important and in the best interests of the children to have a close relationship with his relatives by moving the children to Michigan City, or is it more important to have a continued relationship with their mother? And in my opinion, the continued relationship with their mother can only be brought about by maintaining [the] status quo and by not moving the children to Michigan City.

That decision was supported by the evidence and was not

plainly wrong. Accordingly, the decision of the circuit court

is summarily affirmed.

Affirmed.

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