Northern Virginia Child Custody Visitation Primary Physical Modification Order Material Change Circumstances Best Interest of Child

McDougall v. McDougall, 2010Va.App. LEXIS 182 (Va.Ct.App.May 4, 2010)

Pursuant to an agreed order of custody and visitation, the father had primary physical custody and the mother had visitation rights. When the child was 15 years old, the father filed the instant motion for modification of the visitation order, asserting that the child's age, academic goals, and summer volunteer opportunities warranted a change in the summer visitation schedule.

As the party seeking to modify visitation, father bore the burden to prove: (1) there had been a material change of circumstances since the most recent visitation award and (2) that a change in custody would be in the best interests of the child.See Hughes v. Gentry, 18 Va. App. 318, 321, 443 S.E.2d 448, 450-51, 10 Va. Law Rep. 1332 (1994). The trial court heard the evidence presented at the hearing, including the evidence of the child's schoolwork load, extracurricular activities, and college prospects. Evidence was also presented that the child has academic program opportunities in the area of mother's residence, the child is satisfied with several aspects of her visitation with mother, and the child has enjoyed seeing her relatives during her visitation with mother.

When announcing its decision from the bench, the trial court stated, "the Northern Virginia area does not have a monopoly on educational opportunities. They could be just as available in the Chicago area . . . ." The trial court also expressed concern that father's requests to decrease mother's visitation time with the child would give mother "virtually no time to have any type of relationship with her child." Although the trial court commented only on several predominant considerations for its decision, nothing in the record indicates the trial court failed to evaluate all the factors enunciated on Code § 20-124.3.

Furthermore, in modifying the visitation schedule, the trial court awarded father the first choice in selecting a four-week time period in the summer months for the child's involvement in an academic enrichment program. In addition, the trial court changed the three-day weekend schedule so that the child will return to father's custody on Sundays instead of Mondays on those weekends. "The court, in the exercise of its sound discretion, may alter or change custody or the terms of visitation  when subsequent events render such action appropriate for the child's welfare." Father also contends the trial court erred in considering the "best interests of mother" instead of the best interests of the child based on the trial court's expressed concern that father's requested changes in visitation would give mother "virtually no time to have" a relationship with the child. Code § 20-124.3 specifically provides that the trial court shall consider the relationship existing between each parent and the child and the role each parent will play in the upbringing of the child. Although we do not interpret the trial court's remark as an indication that it considered the "best interests of mother" when making its decision, it was appropriate for the trial court to consider the relationship between the child and mother.

Father asserts the trial court's order that mother not consume alcohol during the child's visitation falls woefully short of the court's duty to assure the best possible environment for the child. The trial court heard evidence, including testimony from the child, concerning the effects of mother's alcohol consumption. The record clearly supports the trial court's exercise of its discretion by restricting the mother's use of alcohol during visitation.

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