Virginia Custody: The Perils of Trial Illustrated

I usually don’t think much about custody decisions by our Virginia Court of Appeals.  The appellants almost always lose.  They usually lose because trial courts rarely commit a legal error like failing to consider the relevant custody factors under Va. Code Sec. 20-124.3.  And they usually lose because the trial courts rarely abuse their discretion, which is a standard that our appellate courts have interpreted as “was the judge drunk?”  So I rarely understand why custody appellants waste their money on an almost surefire loss.  Yet, there’s a recent appellate custody decision that made me think “I get it.”  I get why the appellant couldn’t help but call out the trial court for its questionable decision despite knowing it’d be a sure loss.

In Foster v. Foster, Record No. 1508-15-2 (Va. Ct. App. 2016), the mother must have thought that she was sitting pretty going into the custody trial over her three young children: one in first grade, one in kindergarten, and one not yet in school.  Indeed, the father had some significant demerits, including:

– He was charged with having assaulted their then three year old child in November of 2012, and he thereafter admitted that the prosecution had facts sufficient to find that he had indeed assaulted the young child.

– He once let their youngest child get diesel fuel on him while the father volunteered at a fire station.

– He was estranged from his family.

– He lived with his girlfriend.

– He worked extensively, including 4 days one week from 7:00 a.m. to 7:00 p.m., 3 days the next week from 7:00 a.m. to 7:00 p.m., and an additional 36 hours of volunteer work every month with the local fire department.

So from the mother’s perspective, the father was generally unavailable, quickly exposing the young children to new parental figures, failing to facilitate their contact with his family, neglecting to look after their youngest at a fire station of all places on one occasion, and outright assaulting a very young child.  So how’d she lose custody?  Did she assault the children more than her husband?

Nope.  The appellate court even said that the record showed that she was a loving and devoted parent and acknowledged that the father was not without his flaws.  Nevertheless, the trial court noted that she’s even more unavailable than the father because she worked night shifts 4 days one week from 6:00 p.m. to 6:00 a.m. and 3 days the next week from 6:00 p.m. to 6:00 a.m.  Moreover, and perhaps most importantly, the children had been doing fine while in their father’s primary care for two years before the trial, and it would rock the children’s stability to move them to a new house, new school, and worse work schedule for the custodial parent.

So went wrong for the only undeniably good parent in this situation?  Well, the mother effectively lost her case when the trial court for some unknown reason awarded pendente lite primary physical custody of the children to their father a mere 7 months after he assaulted the youngest child and at a time in which the parties shared essentially the same difficult work schedule.  Once he was on good behavior for 2 years and adopted a more family friendly work schedule, all bets were off.

So what do we learn from this?  First, we learned that pendente lite custody arrangements can have a big impact on the final hearing.  Second, we learned that sometimes evidence that the other parent assaulted the child (or you for that matter) is not always the ace in the hole you might think it is.  And sometimes the court will brush those types of facts aside when looking hard at the practical aspects of caring for the children, including the pendente lite custody arrangements.  It happens rarely.  But it does happen.  And that’s what makes almost any custody trial a risky proposition.