Keel v. Keel

303 S.E.2d 917, 225 Va. 606, 1983 Va. LEXIS 259
CourtSupreme Court of Virginia
DecidedJune 17, 1983
DocketRecord 802029
StatusPublished
Cited by121 cases

This text of 303 S.E.2d 917 (Keel v. Keel) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keel v. Keel, 303 S.E.2d 917, 225 Va. 606, 1983 Va. LEXIS 259 (Va. 1983).

Opinions

THOMAS, J.,

delivered the opinion of the Court.

In this child custody case, the trial court denied a petition to transfer custody of two minor children from their mother to their father. The father’s appeal raises two issues: (1) whether the trial court employed the correct test for deciding when a change in custody is warranted, and (2) whether the trial court considered all evidence relevant to a change in custody. We think the trial court employed an erroneous test and excluded relevant evidence. Therefore, we will reverse and remand this case for further proceedings.

Clarence and Linda Keel were married in July 1966. Three children were born of their marriage, which ended in divorce on May 10, 1974. In the final decree, custody of all three children was awarded to Linda. However, in February 1975, by joint agreement between Clarence and Linda, custody of the oldest child, whom Linda found difficult to control, was transferred to Clarence. Thus, from February 1975 to the present, two of the Keel children have lived with their mother and the other with his father.

In August 1980, while the two children whose custody is entrusted to Linda were visiting with their father in Virginia Beach, he filed a Petition for Custody in the Circuit Court of the City of [609]*609Portsmouth, the court in which the divorce had been granted and the two custody orders entered. Linda, who lives in Fredericksburg, responded promptly with a motion for Clarence to show cause why he was not in contempt of the existing custody order by not turning the two children over to her immediately. She claimed that Clarence had kept the children longer than had been agreed for their vacation.

The petition and the motion came on for an expedited hearing on August 7, 1980. The trial court heard evidence on the issue whether the custody of the two children should be transferred from their mother to their father pending a full hearing on his petition. The court concluded that custody should remain with their mother pending the outcome of a full hearing. In addition, the court found no merit to the contempt motion and dismissed it. A full hearing was set for September 1980 and the case was continued until then.

On September 23, 1980, the trial court heard testimony ore terns, talked to the two children off the record in camera, and ruled that custody of the children should remain with their mother. Clarence appealed. He contends that custody of the children should have been awarded to him. We are not able, on this record, to resolve the question of which parent should have custody, and we express no view on that subject. Our treatment of the case leaves that question open for further consideration by the trial court.

I.

It is plain from the trial court’s own words that throughout the hearings held in August and September 1980, it “misinstructed itself” as to the proper test for determining when a change in custody is warranted. The trial court concluded that in order to secure a change in custody the burden was upon plaintiff to prove the existence of circumstance in the home of the custodial parent that were harmful to the children.

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Bluebook (online)
303 S.E.2d 917, 225 Va. 606, 1983 Va. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keel-v-keel-va-1983.