Harper v. Harper, 751229
| Decision Date | 24 November 1976 |
| Docket Number | No. 751229,751229 |
| Citation | 229 S.E.2d 875,217 Va. 477 |
| Court | Virginia Supreme Court |
| Parties | Charles Michael HARPER v. Gail Spencer HARPER (now Gail Spencer Riley). Record |
David E. Sher, Arlington (Joanne F. Alper, Leonard, Cohen & Gettings, Arlington, on brief), for appellant.
Richard H. Jackson, Fairfax (Hall, Surovell, Jackson & Colten, Fairfax, on brief), for appellee.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
In this appeal we are concerned with the custody of David Michael Harper (Mike), infant son of Charles Michael Harper and Gail Spencer Harper, now Gail Spencer Riley. By decree entered June 20, 1975, custody of Mike, who was then residing with his father, was awarded to his mother, subject to liberal visitation rights reserved to the father. Harper, who in the same proceeding was granted an A vinculo divorce from his wife on the ground of desertion, has appealed the custody ruling.
The Harpers were married in 1968. Mike, their only child, was born the following year. Subsequently, the family purchased a home at Sterling, in Loudoun County. The marriage deteriorated, and Mrs. Harper left with Mike in May, 1973, and went to Virginia Beach to an apartment maintained by her parents. Harper, finding her there in the company of Ross Riley, a mutual friend whom she has since married, took Mike without her consent, and returned to the family residence, where he and his son have lived ever since. Mrs. Harper moved into a two-bedroom apartment in Reston, about five miles from her husband's home.
Mrs. Harper petitioned the Juvenile and Domestic Relations Court of Loudoun County for custody of her son. By order entered July 20, 1973, pursuant to a report of the Loudoun County Department of Social Services, custody was awarded Harper. After Mrs. Harper had timely appealed this ruling, the Juvenile Court file was delivered to the trial court in August, 1973, but the appeal was never heard. Nevertheless, Mrs. Harper and her husband agreed upon a plan under which Mike visited his mother all day on Staturdays and approximately three hours on Tuesdays and Thursdays.
In September, 1973, Mrs. Harper filed a bill of complaint against Harper in which she sought custody of Mike, and a divorce based on her allegation of constructive desertion. In an amended answer and cross-bill Harper sought dismissal of Mrs. Harper's bill, a divorce on the ground of desertion, and custody of the child. The commissioner in chancery to whom the matter was referred heard evidence and recommended that Harper be awarded a divorce on his amended cross-bill, but left the determination of child custody to the trial court.
After hearing the evidence Ore tenus the trial court, by letter opinion dated May 19, 1975, stated that both parties were fit and proper persons to have custody, that Harper was an excellent father, who had 'performed beyond expectation the role of both father and mother', but that 'the rule' enunciated in Moore v. Moore, 212 Va. 153, 183 S.E.2d 172 (1971), that the best interests of a child of tender years are served by being with his mother, was controlling, and that transfer of custody to the mother should be effected at the conclusion of the school year.
The trial court granted Harper's motion for reconsideration to determine whether the recently decided case of White v. White, 215 Va. 765, 213 S.E.2d 766 (1975), mandated that custody be awarded to Harper. After argument on the motion the court reaffirmed its previous decision and entered the decree from which Harper has appealed.
Harper contends that, as he was armed with a valid order of the Juvenile Court awarding him custody of his son, the burden was on his wife to prove that circumstances had so changed that it would be in Mike's best interests to transfer his custody to her. Indeed, where the unchallenged order of a juvenile court remains in effect we have held that the burden is on a parent who seeks to change the custody to show that circumstances have so changed that the best interests of the child require the transfer. Dyer v. Howell, 212 Va. 453, 456, 184 S.E.2d 789, 792 (1971). But in the present case Mrs. Harper appealed the award of custody made by the Juvenile Court and proceeded to seek custody of Mike in the same trial court in the chancery cause in which she sought a divorce. Under these circumstances, we believe that the only burden on Mrs. Harper, as the...
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Weaver v. Roanoke Dept. of Human Resources, s. 791059
...313, 315-16, 227 S.E.2d 741, 743 (1976); Dyer v. Howell, 212 Va. 453, 456, 184 S.E.2d 789, 792 (1971). See also Harper v. Harper, 217 Va. 477, 479, 229 S.E.2d 875, 876 (1976). The proceeding below, however, concerned the termination of residual parental rights as well as custody of the chil......
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Clark v. Clark, 760468
...things are equal the mother, as the natural custodian, should be awarded legal custody of an infant of tender years. Harper v. Harper, 217 Va. 147, 229 S.E.2d 875 (1976). When the mother's home and the father's home are equally suitable for raising the children, we have held that "other thi......
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Albert v. Ramirez, Record No. 1571-04-4.
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Peple v. Peple
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