Material Change in Circumstance Standard

The threshold standard for courts to consider a change in a custody or visitation order is the material change in circumstance standard.  The Virginia Court of Appeals recently highlighted this standard in Duva v. Duva.  In this matter, the court examined a situation where Father was granted only supervised visitation of the parties' minor children.  Father, disfavoring this ruling, sought a modification to allow him unsupervised visitation.  Father's justification for this change apparently hung on Mother's failure to comply with an oral agreement to take the parties' minor children to frequent counseling sessions, though this obligation was never set forth in a court order.  The court denied Father's request, noting that nothing material had changed since the court last examined the issue of custody.  In Virginia, the standard for a custody/visitation change is (1) whether there has been a change in circumstances since the most recent [visitation] award; and (2) whether a change in [visitation] would be in the best interests of the child. In Duva, Father's claim did not meet the standard for a change in circumstances. 

International Child Custody Ruling

A panel of Brazilian judges ruled that a boy, taken from the United States by his mother in 2004, must be returned to his American father.  The boy's mother took him to Brazil in 2004 for what was supposed to have been a 2 week vacation.  However, she later obtained a Brazilian divorce and remarried.  The boy's father has been seeking his son's return under an international treaty covering child abductions.  Both Secretary of State Hillary Clinton and President Barak Obama have called for the child's return, and the case has made headlines for international child custody disputes. 

Father's Parental Rights Terminated For Failing To Protect Daughter From Sibling

Parental rights terminated for failing to protect daughter from sibling.

Henrico Circuit Court's Order for Visitation Upheld In Case of Non-Biological Parent

The Virginia Court of Appeals recently affirmed a Circuit Court's decision to hold jurisdiction over a non-biological parent's petition for child custody and visitation.  In the case of O'Rourke v. Vuturo, the Virginia Court of Appeals, sitting in Richmond, heard an appeal from the Henrico Circuit Court.  Vuturo was listed as the child's father on the birth certificate.  The child, however,  while born during the marriage of Vuturo and his wife (now remarried and going by the name O'Rourke), was in fact the biological child of Mr. O'Rourke.  While Vutro was away, his wife took the child to Maryland and moved in with O'Rourke.  The Vuturos subsequently divorced and Mr. Vuturo sought visitation. 

Under Virginia Code 20-146.12, Virginia Courts only have jurisdiction in custody issues if the child lives in the Commonwealth at the commencement of the proceeding or else lived in the Commonwealth within six months of the commencement with a parent or person acting as a parent continuing to live in the Commonwealth.  In this case, the Henrico Circuit Court held jurisdiction over the matter because the child lived with Vuturo within 6 months of commencement of the action and Vuturo was a person acting as a parent as defined in Virginia Code 20-146.1.  Vuturo developed a positive relationship with the child and a parent-child relationship developed.  In fact, the Court saw no evidence that granting Vuturo visitation would result in actual harm to the child. 

Child Visitation Denied To Alleged 'Stepparent' Because She Was Not A 'Person With A Legitimate Interest'

The Court of Appeals has denied child visitation to a lesbian former 'stepparent.'  In Damon v. York, husband and wife divorced, with one child.  Wife was awarded custody, and thereafter cohabitated with Appellant Damon.  The two were married in Canada under a same-sex marriage law.  After 21 months, the couple then broke up, and Damon sought visitation rights with the child.  She contended that she was a 'person with a legitimate interest' under Code Section 20-124.1, as she was an actual or equivalent of a stepparent.

The appellate court affirmed the trial court's denial of Damon's visitation request.  First, the court noted that under Virginia's Affirmation of Marriage Act, a Virginia courts must treat Damon's same sex marriage to wife as void.  Further, Damon failed to establish that she was the 'functional equivalent' of a stepparent, as she lived with the child for only 21 months, and the mother testified that Damon was merely an 'adult presence' in child's life.

Of particular note, Damon seized on comments made by the trial court judge that she may have been a functional equivalent of a stepparent  at one point, but was no longer at the time of the court's ruling.  Damon argued that she therefore had standing to obtain child visitation rights.  The Court of Appeals disagreed, noting that if it were to agree , it would have to hold that when someone attains status as a de facto family member, they then have a perpetual right to seek visitation.