Ragan v. Ragan

77 Va. Cir. 323, 2008 Va. Cir. LEXIS 235

• Court: Roanoke County Circuit Court
• Decided: December 9, 2008
• Docket: Case No. CJ08-100
• Status: Published

Opinion

By Judge Robert P. Doherty, Jr.

This matter is before the Court on an appeal from the Juvenile and Domestic Relations District Court (J&D) wherein the mother asked for injunctive relief to enforce a prior order of that court. The argument between the parties dealt with whether the child should be enrolled in the public school chosen by the father or the one chosen by the mother. In making its final decision, the J&D court permanently changed custody. The father objects to that change of custody as no notice was given. The mother claims that the J&D court had the authority to transfer custody without notice under § 16.1-278.15, Code of Virginia (1950), as amended.

The J&D court has extraordinary powers in dealing with children. Under § 16.1-241, Code of Virginia (1950), as amended, it has the authority to step into any emergency situation and immediately change custody of a child and remove him or her to a safe environment. This can be done on a temporary basis in order to protect the child and to alleviate a dangerous or harmful environment. Those emergency changes of custody are frequently and necessarily accomplished without due process procedures. Once the emergency situation is abated, if the court thereafter contemplates a permanent change of custody, then at that, time the due process requirements of notice, hearing, and opportunity to be heard must be followed. The issue of child custody “involve [s] a fundamental liberty interest of the parent. Accordingly, the parent must be accorded the benefits of due process.” Haase v. Haase, 20 Va. App. 671, 681 (1995). The failure to provide those necessary due process safeguards is fatal to the J&D court’s decision to make a permanent change of custody. Accordingly, the J&D final order is void ab initio.