COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗ Argued at Richmond, Virginia
LINDA CINTRON MEMORANDUM OPINION ∗∗ BY v. Record No. 2169-99-2 JUDGE DONALD W. LEMONS JULY 5, 2000 DAVID A. LONG
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler, Judge
Deanna D. Cook (Bremner, Janus & Cook, on brief), for appellant.
John N. Clifford (Clifford & Duke, on brief), for appellee.
Linda Cintron ("mother") appeals the September 9, 1999
order of the Circuit Court of Chesterfield County granting David
Long ("father") custody of their thirteen-year-old daughter
("daughter"). On appeal, the mother contends that (1) the trial
court's order changing custody of the daughter from the mother
to the father is void for lack of subject matter jurisdiction;
(2) if subject matter jurisdiction existed, the trial court
abused its discretion in changing custody; and (3) the mother
should be awarded attorney's fees and costs for this appeal.
∗ Justice Lemons prepared and the Court adopted the opinion in this case prior to his investiture as a Justice of the Supreme Court of Virginia. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-16.010, this opinion is not designated for publication. Mother presents three additional questions for review - one
concerning failure to grant a motion to reconsider and two
pertaining to visitation. Our opinion renders it unnecessary to
address these three additional questions on appeal. Because the
trial court abused its discretion by changing custody of the
daughter from the mother to the father, we reverse that ruling
and remand to the trial court.
I. BACKGROUND
The mother and the father were never married and never
lived together. He is sixty-four years old, and she is
thirty-eight years old. The daughter was born on May 13, 1986.
She lived with the mother from birth until August 13, 1999. The
father visited the daughter approximately twice a year until she
was four years old, at which time he stopped visiting until
after her ninth birthday in 1995 when he visited "a couple of
times." There was no further contact until November of 1997
when the father was given temporary visitation pursuant to his
November 3, 1997 petition for visitation and custody. Dr.
Leigh D. Hagan, a forensic and clinical psychologist, was
appointed by the juvenile court to facilitate visitation.
On January 5, 1998, the father withdrew his petition for
custody. From the Fall of 1997 until August 12, 1998, the
father visited the daughter three times. His visitation rights
were terminated in August of 1998 by the juvenile court.
- 2 - The father appealed to the circuit court and, at the March
22, 1999 hearing, the judge began the proceedings noting "some
additional observations, just from reviewing this file." He
asked, "Why is a twelve year old controlling the issue of
visitation?" He noted that while he was not going to force the
daughter into a relationship with her dad that is "detrimental
to her best interest," "I've got to ask myself why is a twelve
year old controlling the issue of visitation. That's what my
concern is." Prior to hearing testimony, the court stated,
I hate to put this focus on a twelve year old child.
* * * * * * *
I think it's almost criminal to do that. Now, unfortunately the statute says I have to do that, and I will.
But I tell you, I don't like it. I think it's wrong. I think it's empowerment to a twelve year old child who apparently has got too much power already.
Dr. Hagan testified that the mother was not supporting the
daughter's re-introduction to the father, that the mother
continued to exert great influence over the daughter and,
therefore, the trial court should require visitation for the
father and implement a specific schedule so that the daughter
would be given the opportunity to form her own opinion of the
father based on firsthand observations as opposed to the
mother's negative feelings toward the father. Hagan stated that
he had no reservation regarding the father's character, interest
- 3 - or capacity to look after the daughter's interests and described
him as "patient, courteous [and] respectful." Hagan
characterized the opinion the mother articulated of the father
as "about as low an opinion as I've heard expressed. It was
bitter and hostile. All on the theory of errors of omission
rather than commission." Hagan further described that encounter
stating, "it's about as emotionally charged an atmosphere as
I've ever had in my office in sixteen years." The trial court
reinstated the father's visitation rights.
On May 19, 1999, the trial court held a show cause/review
hearing based on failure to comply with the court-ordered
visitation. The judge stated from the outset, "Let me be very
clear about this. If the information I am to receive from [the
daughter] is suggestive of the fact that Ms. Cintron has
interfered with Mr. Long's ability to start a relationship with
this child, I'm going to transfer custody today. That's the
bottom line on this."
The evidence revealed that the daughter had, when she was
six or seven years old, asked the mother to talk to the father
to arrange visitation at least three times, all of which the
mother refused. Further, the trial court found that the
daughter's attitude had "vacillated 180 degrees since the last
time she was [there]" when she told the judge that she had "no
reservations whatsoever about seeing her dad, re-establishing a
relationship with him, and spending time with him." The court
- 4 - found her evasive in her answers and attributed the daughter's
sudden refusal to cooperate with the visitation to the mother's
efforts to undermine the establishment of any relationship
between the father and the daughter. The judge noted that the
mother could be held in contempt and then stated, "I'm going to
put the parties back into visitation, and I'm going to tell
them, point blank: If there are any other further violations of
the order, somebody is going to jail." The court ordered a new
schedule for visitation.
On June 14, 1999, in another show cause/review hearing, the
evidence revealed that the daughter continued to refuse to visit
with the father. Before the mother testified, the judge stated,
"It's obvious we're being held hostage by a 13-year-old child,
and I've got to ask myself who's the parent, and who's the
child?" He went on to warn the mother,
I'm not going to be held hostage by a 13-year-old child. Perhaps Ms. Cintron wants to allow herself to be held hostage by a 13-year-old child, and I'm assuming, for sake of this discussion, that Ms. Cintron is without blame in this. If she is without blame, then we've got a 13-year-old child that's calling the shots, over whom Ms. Cintron has no control. I'm not going to be held hostage.
This [c]ourt's orders are not going to be thwarted by Ms. Cintron's lack of parenting abilities to control a 13-year-old child.
- 5 - The trial court found that the mother was doing nothing to
encourage visitation, only paying the court's order "lip
service" and was not sanctioning the daughter or implementing
consequences for her disobedience. The trial court determined
that the change in the child's attitude indicated either a lack
of the mother's parental abilities or the mother's undue
influence. The judge stated, "I'm not going to be held hostage
by a 13-year-old girl. Ms. Cintron chooses to he held hostage
by a 13-year-old girl. I'm not going to be. She's either going
to go visit with her dad, or she's going to live with her dad.
And you can tell her that. And that's the choice she’s got."
The court noted that, "I'm just not playing a game with a
13-year-old." Before a new visitation schedule was implemented,
the court again stated, "I'm not going to play with a
13-year-old, and I'm not going to be held hostage by her," "[the
daughter]'s had the opportunity [to comply with the order] . . .
[, a]nd quite frankly, she's been playing fast and loose with
this, and I don't have the patience for it . . . as I've said
repeatedly, I'm not going to be held hostage by a 13-year-old
little girl[,] I'm not going to do it" and "I really don't have
time to be playing a game with a 13-year-old little girl."
On August 13, 1999, the court again held a show
cause/review hearing. The father testified that approximately
95% of the visitation schedule had not been completed and that
the daughter threatened to run away. Dr. Marie Brown, based on
- 6 - her home visits and telephone conversations with the daughter,
the mother and the father, testified that the mother had a
"verbally abusive and physically confrontational episode with
the father." Brown testified that she suspected the mother to
have "issues about the visitation." The father was described as
"respectful," "cooperative" and "pleasant." Brown recounted an
episode where the daughter was verbally abusive to the father,
calling him "a prick" and telling him to "go to hell." Brown
stated that "in thirty years of clinical practice, [she had]
never [seen] such flagrant disregard for the court system," that
the court was "made into a mockery" and recommended giving
custody to the father and that the daughter be sent to boarding
school to figure out her identity. The evidence further
revealed that during the visitations, the daughter would stay in
her room and "pout."
Before talking with the daughter in chambers, the trial
court judge noted that it "w[ould] be as fruitless as the last
time" and went on to state, "We have a thirteen-year-old child
who is calling the shots here." After meeting with the
daughter, the court noted its observations, stating, "I am not
going to be manipulated by a thirteen-year-old. She has
manipulated Mom. She is trying to manipulate Dad. She has
manipulated everyone with whom she has come into contact." The
court noted, "I have no intentions of leaving that child with
Ms. Cintron. I'm going to change custody. If the child wants
- 7 - to run away, that's Mr. Long's problem. He's going to have to
deal with that."
The trial court found that Dr. Brown's testimony was "a
carbon copy" of what was heard from Dr. Hagan six months
earlier, that it had doubts about the mother's parenting
abilities and that it did not find the daughter's testimony
credible. The mother was found to be in contempt. Custody was
transferred to the father immediately, and the mother was
instructed to pay the father child support in accordance with
the guidelines.
II. SUBJECT MATTER JURISDICTION
Mother claims that the trial court's order of September 9,
1999 granting the father custody of the daughter is void for
lack of subject matter jurisdiction. Mother argues that since
the trial court acquired jurisdiction solely by virtue of an
appealed visitation petition, and father's custody petition was
filed for the first time in the trial court after the appeal
hearing, the trial court did not have original jurisdiction to
entertain the custody petition filed for the first time in its
court. According to appellant, Code § 16.1-241(A) vests the
juvenile and domestic relations district court with exclusive
original jurisdiction of all cases involving custody, visitation
and support of minor children.
Code § 16.1-244, however, states that the jurisdiction
granted to juvenile courts shall not "deprive any other court of
- 8 - the concurrent jurisdiction . . . to determine the custody,
guardianship, visitation or support of children when such
custody, guardianship, visitation or support is incidental to
determination of cause pending in such courts." Contrary to the
mother's assertions, custody was incidental to visitation in
this case and the circuit court had subject matter jurisdiction
to transfer custody.
III. CUSTODY
When determining which custody arrangement is in the best
interests of a child, the trial court is required to consider
the evidence presented as it relates to the factors listed in
Code § 20-124.3. The trial court is not required to quantify or
elaborate what weight or consideration it has given to each of
the factors enumerated in Code § 20-124.3 or to weigh each
factor equally. See Sargent v. Sargent, 20 Va. App. 694, 702,
460 S.E.2d 596, 599 (1995). The trial court's findings,
however, must have some foundation based on the evidence in the
record, and if the trial court's findings lack evidentiary
support, its determination of child custody is an abuse of
discretion. Cf. Trivett v. Trivett, 7 Va. App. 148, 153-54, 371
S.E.2d 560, 563 (1988); Woolley v. Woolley, 3 Va. App. 337, 345,
349 S.E.2d 422, 426 (1986). The trial court is vested with
broad discretion to safeguard and promote the child's interests,
and its decision will not be reversed unless plainly wrong or
- 9 - without evidence to support it. See Farley v. Farley, 9 Va.
App. 326, 327-28, 387 S.E.2d 794, 795 (1990).
This case implicates Code § 20-108 which states in
pertinent part, "[t]he intentional withholding of visitation of
a child from the other parent without just cause may constitute
a material change in circumstances justifying a change of
custody in the discretion of the court." This provision simply
means that the first prong of the test articulated in Keel v.
Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983), may be
satisfied by a finding of intentional withholding of visitation.
This provision does not mean that the second prong of the Keel
test dealing with "best interests of the child" has been removed
from the court's consideration. See also Code § 20-124.3.
The mother argues that the trial court abused its
discretion by changing custody of the daughter from her to the
father. We agree. The trial judge explained his ruling as
follows:
I don't find that Ms. Cintron has in good faith tried to comply with the orders of this [c]ourt. I find she is in contempt of the orders of this [c]ourt, and I have serious questions about her individual parenting ability. I said this before and I'll say it again, she's either in willful violation of this order or she is being controlled by a thirteen-year-old girl.
I spoke with [the daughter], counsel each questioned [the daughter], and quite frankly, I don't put a great deal of credibility in anything that [the daughter] had to say. I think [the daughter] was
- 10 - delivering a message, and I seriously doubt her ability to provide this [c]ourt with an informed judgment as to the status of her role in the relationship with Ms. Cintron and Mr. Long.
I'm tired of having this case come back and forth here. We have probably been in court once a month since March. I don't know what the answer to this is. I can't force a thirteen-year-old into a visitation, and I realize that.
I feel like I have no choice at this point than to allow Mr. Long to exercise his parenting abilities, to see if there is better control. I am transferring custody of this child to Mr. Long.
After awarding custody to the father, the trial court stated,
Mr. Long, I don't know what you are going to do with this little girl. I really don't. She is out of control. She has been oppositional. She's been obviously indoctrinated for a long period of time that you haven't dealt with incarnate [sic].
I don't know what the answer is. I would hope that you will rely on the advice of the professionals who might be in a better position to give you the guidance that you need, because I can give you no guidance.
The trial court's stated reason for the decision and our
review of the evidence in the record reveal that noncompliance
with the court's orders rather than consideration of the factors
in Code § 20-124.3 served as the basis for the court's transfer
of custody. Our review of the record demonstrates that the
trial court, amidst its frustration with the daughter's
consistent failure to comply with the court-ordered visitation
- 11 - schedule and the mother's failure to sanction the daughter for
such disobedience, responded by removing the child from the
mother, her custodian since birth, and placing the
thirteen-year-old girl with her sixty-four-year-old father who
was a virtual stranger to her and with whom she hardly had the
semblance of a relationship.
Although we are sympathetic to the frustration of the trial
court in dealing with this difficult situation, "[i]n matters
concerning custody and visitation, the welfare and best
interests of the child are the 'primary, paramount, and
controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (quoting Mullen v. Mullen,
188 Va. 259, 269, 49 S.E.2d 349, 354 (1948)). Our Supreme Court
has noted that "[o]ur first and foremost concern here, as in all
child custody cases, is the welfare of the child. All other
matters, including the misconduct of the [mother] in violating
court orders, must necessarily be subordinate." Brown v.
Kittle, 225 Va. 451, 457, 303 S.E.2d 864, 868 (1983). "The
custody of minor children in such controversies is never to be
given to one parent to punish the other." Rowlee v. Rowlee, 211
Va. 689, 690, 179 S.E.2d 461, 462 (1971).
It is apparent that the basis for the trial court's
"serious questions" about the mother's parenting abilities were
the child's consistent refusal to comply with the visitation
schedule and the mother's failure to correct the child's
- 12 - behavior, namely by use of sanctions. Although the trial court
criticized the mother for failing to use sanctions to achieve
compliance, the trial court did not use sanctions either. Only
after custody was transferred was mother held in contempt and
even then, the 30-day sentence was suspended in its entirety.
Additionally, there was no evidence that the child had
adjustment problems in other areas of her life. In fact, until
this litigation the child participated in various athletic
activities, dance classes, cheerleading, and performed well,
both academically and socially, in school. She was not in any
trouble with authority figures and was not running away from
home.
Because the record includes transcriptions of proceedings
after the transfer of custody, we are aware that the trial
court's prediction that the child would run away as a response
to the transfer of custody came true. Additionally, she was
hospitalized in a psychiatric hospital and thereafter, upon
release, was enrolled in a boarding school some distance from
her home.
This case does not involve a custody determination between
biological parents who lived together and jointly raised a child
until a recent separation. Similarly, this case does not
involve a long separation of biological parents with a history
of continuous visitation by the noncustodial parent. Rather,
this case involves unmarried biological parents who never lived
- 13 - with one another, never jointly parented the child, and a
thirteen-year-old girl with whom the father had virtually no
relationship. On the facts of this case, it was an abuse of
discretion to transfer legal custody of this thirteen-year-old
girl to her father who was essentially a stranger to her.
IV. ATTORNEY'S FEES AND COSTS
We find no basis for the award of attorney's fees and costs
on appeal.
V. CONCLUSION
Accordingly, we reverse the order changing custody of the
daughter from the mother to the father and remand to the trial
court for entry of an order consistent with this opinion and for
further proceedings as necessary.
Reversed.
- 14 - Coleman, J., dissenting.
The bond between a parent and child is one of the strongest
recognized in the law. Although the father, David Long, and
daughter, Christan Cintron, had only occasional and sporadic
visitations since her birth, the trial judge was correct in
recognizing, in my opinion, that the best interest of the child,
which is always the paramount concern in a child custody
dispute, would be served by encouraging and promoting a
relationship between father and daughter, even over the
resistance and objection of the mother. Thus, I respectfully
disagree with the majority that the trial judge abused his
discretion in ordering that custody of the parties'
thirteen-year-old daughter be transferred to the father.
The trial judge in this case was confronted with a
situation in which the mother was persistently frustrating and
resisting the court-ordered visitation between the daughter and
father and, consequently, was influencing and supporting the
daughter's unwillingness and resistance to the visitation. The
trial court's decision to change custody was the most reasonable
and viable remedy that the trial judge had available to effect
the desired result and overcome the mother's and child's
resistance and disobedience to the court's visitation order.
Admittedly, the child had done well under the single parenting
of the mother; nevertheless, in my opinion, the trial court did
not err in finding that a material change of circumstance had
- 15 - occurred, which justified the trial judge's
remedy-of-last-resort while at the same time addressing the
mother's and child's continued and persistent disobedience to
the court's orders. I would affirm the trial judge.
Admittedly, this case presents a difficult situation in
which a father is being awarded custody of his thirteen-year-old
daughter when he has only occasionally visited with his daughter
since her birth and has no established close relationship with
her. Apparently, during the child's early years, the father did
not attempt to establish a relationship with her, at least in
part, because of the mother's hostile attitude and lack of
cooperation. While the record does not fully explain the
reasons for the mother's attitude, it may well be that past
events between the parents justified a level of resentment and
hostility from the mother toward the father. For whatever
reason, the father did not pursue legal action in order to
establish a relationship with his daughter until the child
reached an age that she could exercise some judgment and
volition. However, when the child was six or seven years old,
she had asked the mother to arrange visitation with her father,
but the mother refused. Although the father occasionally,
albeit sporadically, visited his daughter over the years, in
November 1997, he sought court-ordered visitation. At one point
during the two years of hearings regarding visitation, the child
told the trial judge that she had "no reservations whatsoever
- 16 - about seeing her father, re-establishing a relationship with
him, and spending time with him." The trial court found that
the father was a fit person to have a parental relationship with
the child and the evidence showed that he was "respectful,"
"cooperative," and "pleasant." Although the court ordered
visitation between the father and daughter, the mother has not
cooperated in bringing about the visitation and has not
encouraged the cooperation of the child. The court found that
the child's attitude and resistance was due to the influence and
lack of cooperation of the mother.
The trial court's efforts to effectuate a relationship
between the father and daughter through visitation, and before
resorting to a change of custody, are well documented in the
record. The trial court first undertook to initiate the
relationship by establishing visitation rights with the father
and daughter and appointing a clinical psychologist to work with
the parents and child to facilitate the visitation and deal with
the mother's hostility and daughter's lack of cooperation. A
second psychologist became involved to further assist in
bringing about a relationship between the father and daughter.
According to one of the mental health experts, the mother's
attitude toward the father was "about as low an opinion as I've
heard expressed. It was bitter and hostile . . . it's about as
emotionally charged an atmosphere as I've ever had in my office
in sixteen years." One of the psychologists testified that the
- 17 - mother exerted great influence over the child and that she was
not supporting the child's re-introduction to the father nor the
court-ordered visitation. In a further effort to enforce its
visitation decree, the court attempted to exercise its contempt
powers against the mother. After three show cause hearings, in
which the court threatened the mother with contempt, the court
eventually held her in contempt for violating its visitation
order when it finally awarded custody to the father. In this
vein, the majority suggests that the trial court might have more
forcefully pursued contempt in order to enforce its visitation
decree rather than order a change in custody. However, in my
opinion, that decision was within the trial court's discretion.
I believe it was a proper exercise of the court's discretion to
pursue that avenue by awarding custody to the father. Holding
the mother in contempt and fining or imprisoning her would have
served only to exacerbate further the hostilities between the
parents and to frustrate further the court's efforts to bring
the child and father together.
I am not insensitive to the fact that the mother has been
the sole caretaker and provider for this young girl from birth
until her teenage years. However, the trial court was not
unmindful that in large measure the child's unwillingness to
visit with her father was due to the mother's opposition and
unwillingness to allow the father to have a relationship with
the child.
- 18 - The best interest of the child is always the guiding
standard for all custody determinations and that decision is to
be made after consideration of the factors in Code § 20-124.3.
The trial court has broad discretion in making a custody
determination that will serve the child's best interest, and we
will not reverse that decision unless plainly wrong or without
evidence to support it. See Code § 8.01-680; Brown v. Brown,
218 Va. 196, 237 S.E.2d 89 (1977). Code § 20-108 provides,
"[t]he intentional withholding of visitation of a child from the
other parent . . . may constitute a material change in
circumstances justifying a change of custody in the discretion
of the court." By enacting this provision in Code § 20-108, the
General Assembly expressly acknowledged and sanctioned the
remedy that the trial judge resorted to in this difficult
situation. Where one parent disobeys and attempts to frustrate
the order of a court and the rights of a parent to child
visitation, the most viable solution to deal with a parent's
recalcitrance and not to reinforce the parent's unwillingness to
cooperate with a visitation plan may well be to change custody,
as the trial judge did in this case. That is the difficult
decision which a trial judge must make. In my view, the
majority's holding seriously frustrates the efforts of a trial
court to effectuate its decision to establish a visitation
relationship between a parent and child when deemed to be in the
child's best interest. The majority's holding severely limits
- 19 - or disregards the power granted to a trial court by Code
§ 20-108 to enforce its visitation orders. Although the trial
court's change of custody from the mother to the father may be
considered a bold measure to enforce visitation, I do not see
that such measure was an abuse of discretion. I would affirm
the trial court, therefore, I dissent from the majority's
decision.
- 20 -