Keel v. Keel

303 S.E.2d 917, 225 Va. 606, 1983 Va. LEXIS 259
Supreme Court of Virginia·Decided June 17, 1983·No. Record 802029·Published·Cited by 121 cases

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] Portsmouth, 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.* As is shown more fully below, [610] this test was too restrictive because it takes a one-sided view of a many-sided problem.

Linda argues that the trial court’s test was correct because it was applied in the context of a temporary custody hearing in which the trial court was called upon to make a hasty decision on where the children should be placed pending a full hearing. Her argument on this point is without merit for at least two reasons. First, there is but one test in child custody controversies between parents of minors. In Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948), we said that “the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate.” (Emphasis added.) This is an unvarying test. Though the test may be refined in change of custody cases, the general principle that the welfare of the child is paramount must be adhered to whether the question is temporary custody or permanent custody. Second, even if Linda’s argument were correct with regard to the existence of a different standard where temporary custody is the issue, her argument would not explain the fact that the trial court repeated the same test in September, during the full hearing. The wrong test was applied in both portions of the two-part proceeding.

The error in the test applied by the trial court is that it focuses only upon whether there has been a negative change in the circumstances surrounding the custodial parent. But the inquiry in a child custody case cannot stop there. It is also pertinent whether there has been a positive change in the circumstances surrounding the noncustodial parent. But even that inquiry does not go far enough because there could exist a change in the circumstances of the children themselves that might require a change in custody even though the court is unable to discern any appreciable change in the circumstances of either parent. The correct test requires an analysis of the circumstances of both parents and the children. In addition, it is concerned with positive as well as negative changes.

By way of explaining its approach, the trial court stated that it was attempting to avoid a “yo-yo” effect where the children would be “yanked” back and forth from one parent to the other. The trial court espoused the view that once custody is determined it should not be changed except in extreme circumstances. Though the general principle of stability in custody matters is a salutary one, here the trial court overstated its [611] importance. We agree that it is wise to settle custody questions to the greatest degree of certainty possible, but we recognize that the entire issue of child custody is fraught with uncertainty. Therefore, although a settled environment may have its benefits, it is simply another factor to be considered in determining the best interests of the children. It cannot be used to preclude examination of other pertinent factors. Further, the facts of this case reveal that here the trial court’s concern about the so-called “yo-yo” effect is misplaced because, to date, there has never been a change in the custody of the two children whose interests are here under review.

Moreover, instead of taking a narrow view that once custody is decided it should stay decided absent “gross changes that threaten harm” to the children, the better view is the one we expressed in Andrews v. Geyer, 200 Va. 107, 111, 104 S.E.2d 747, 750-51 (1958), where we wrote as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

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

303 S.E.2d 917 (Keel v. Keel) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Misty L. Garrett v. William F. Hanna
Court of Appeals of Virginia, 2024
Powell v. Knoepfler-Powell
Supreme Court of Virginia, 2024
Valthea Courtney Fry v. David Sosnowski
Court of Appeals of Virginia, 2024
Rebecca B. Hill v. John R. DeMott
Court of Appeals of Virginia, 2021
Rolf Pemberton v. Kathryn Mallek
Court of Appeals of Virginia, 2020
Jason Wynnycky v. Susan T. Kozel
Court of Appeals of Virginia, 2019
Melanie Lynn Rhodes v. Delmar Lang and Susan Lang
791 S.E.2d 744 (Court of Appeals of Virginia, 2016)
Sabel M. Wheeler v. Andre L. Lincoln
Court of Appeals of Virginia, 2016
Michael Hugh Palmer Murphy v. Corie Ann Murphy
779 S.E.2d 236 (Court of Appeals of Virginia, 2015)
Rupert v. Bruce
89 Va. Cir. 312 (Roanoke County Circuit Court, 2014)
Dawn News Rush v. Jeffrey Clay Carico
Court of Appeals of Virginia, 2014
Terry R. Engle v. Vanessa Everette Whitt Eberle
Court of Appeals of Virginia, 2013
Michael Andrew Forbes v. Keri E. Forbes
Court of Appeals of Virginia, 2013
Tamena Wilson v. Fitzgerald Britton
Court of Appeals of Virginia, 2012
Maria Isabella Turpin v. Billy Keith McGowan
Court of Appeals of Virginia, 2012
Sherrie Morgan v. Renee Kifus and David Chowaniec
Court of Appeals of Virginia, 2011
Timothy M. Barrett v. Valerie Jill Rhudy Barrett
Court of Appeals of Virginia, 2011
Jean Frances Krusell v. SaAd Abdulrazzak Al-Rayes
Court of Appeals of Virginia, 2009
Elizabeth A. Haring v. Michael J. Hackmer
Court of Appeals of Virginia, 2009
Wayne L. Rodgers v. Kelly D. Rodgers
Court of Appeals of Virginia, 2008