M.E.D. v. J.P.M.

• Decision Date: 05 November 1986
• Docket Number: 0631-85,Nos. 0358-85,s. 0358-85
• Citation: 350 S.E.2d 215,3 Va.App. 391
• Court: Virginia Court of Appeals
• Parties: M.E.D. v. J.P.M. Record

Page 215

350 S.E.2d 215

3 Va.App. 391

M.E.D. v. J.P.M.

Record Nos. 0358-85, 0631-85.

Court of Appeals of Virginia.

Nov. 5, 1986.

Thomas A. Guidoboni (Bonner, O'Connell & Scheininger, Washington, D.C., on briefs), for appellant.

Mark B. Sandground, Washington, D.C., and Mark A. Barondess, Alexandria, on brief for appellee.

Amicus Curiae: Women's Legal Defense Fund (Jane S. Reese, Laura A. Foggan, Washington, D.C., Donna R. Lenhoff, Women's Legal Defense Fund, on brief), for appellant.

Present: KOONTZ, C.J., and BENTON and MOON, JJ.

BENTON, Judge.

M.E.D. (the "mother") appeals from the circuit court's reinstatement of J.P.M.'s (the"father") visitation rights with their daughter. The court earlier suspended visitation rights after a report that the father sexually abused the child. The mother contends that (1) the court failed to give proper attention to the child's welfare; (2) the court erred in excluding evidence as to the allegation of sexual abuse; (3) the scope of the order reinstating visitation constituted an abuse of discretion; and (4) the court was without jurisdiction to enter a second order more than twenty-one days after the order reinstating visitation rights. We reverse and remand the case for further proceedings.

I.

The mother and father separated in May 1981, approximately nine months after the birth of their daughter. They executed an agreement in 1981 which gave sole custody of the child to the mother and granted the father "the right of visitation at all reasonable times and places." The visitations, however, did not run smoothly, and in March 1984 the parties consulted Dr. Edward Beal, a clinical psychologist at Georgetown University, for his recommendation regarding an appropriate schedule for the father's visitation. Following interviews with the mother, the father, and the child, Dr. Beal made a specific proposal for visitation and recommended that the father undergo psychological counseling to improve his parenting skills. Dr. Beal's recommendations included the following: that the father's visitation with his daughter "should be one-half days (4-6 hours) on successive days, Saturday and Sunday every two weeks ... in the Washington Metropolitan area;" that the father "seek psychological counseling so that he may more appropriately understand and learn how he can be a responsible caring adult to his daughter;" that the mother cooperate with this counseling; and that on or before the child's fifth or sixth birthday a review be made of (a) the father's parenting skills, (b) the child's response to his visits and (c) the mother's cooperation, for the purpose of determining whether it would be appropriate to increase the father's visitation to include overnight visits and vacations.

On May 18, 1984, in an order entered pendente lite in a divorce action commenced by the mother, the court granted custody of the child to the mother, and provided for visitation by the father every other Saturday in the Washington area. The May 18 order also directed the father to participate in counseling with Dr. Beal and ordered the mother to make herself and the child available to Dr. Beal in conjunction with this counseling. The order in these respects essentially followed Dr. Beal's recommendations.

The May 18 order further provided for a July 12, 1984, hearing to review the case "at which time Dr. Beal's report and any other relevant and material evidence shall be considered." At the hearing on matters contained in the May 18 order, the father's counsel stated: "We would stipulate to another report from Dr. Beal." The mother told the court that "there is a very serious concern about sexual matters[,]" referring to "an admission in the deposition" concerning improper conduct by the father toward the mother's nine-year old daughter by a previous marriage and statements made by the parties' daughter. The court declined at that time to consider the mother's allegations, stating:

I am not going to label some man in effect some kind of pervert who can never see his children again without the strongest type of evidence. And you don't have that.

* * *

* * *

And I'm not indicating because I have said those things that I believe for one minute on this record that [the father] has any kind of problem.

Let's find out. I'm not a trained psychiatrist, and I don't know what a few spank marks mean, or I don't know what some three-and-a-half-year-old girl says or doesn't say in double hearsay that can deny him or make findings that he can't see his child.

Let's go ahead and presume that Dr. Beal is a very highly competent professional. And he can determine these things, and he can report back.

Both parties have stipulated to go to Dr. Beal and to put his reports in evidence.

At some date after the May 18 order and before the hearing scheduled for July 12, an allegation was made that the father had sexually molested his daughter. The record discloses that the mother was the source of the allegation. On July 12, Dr. Beal wrote to the court concerning information from the child about sexual abuse:

It is ... my understanding that visitation between [the child] and ... [the father has] been suspended by you based on information supplied to you by [the father's counsel]. I have received information from [the child] about alleged sex abuse that since the matter as I understand it will no longer be before your court requires me to refer the matter to Protective Services so that a criminal investigation can be undertaken.

On July 13, the court entered an order suspending visitation; the father agreed to the court's acting without a hearing. The criminal investigation alluded to in the letter apparently was not pursued.

The father subsequently moved to reinstate visitation with his daughter. On the basis of an understanding between counsel, the father first presented his evidence. The court took notice of this arrangement and added:

But this case is going to proceed on the basis that it is presumed that this child has the right to visit with her father, and the father has the right to visit with the child, so that the burden is going to be on [the mother] in this case.

After a three-day hearing in early March, 1985, the court found the evidence insufficient to show that the child had been molested or that the father had molested the child. The court granted the motion to reinstate visitation and, in an order entered on March 15, 1985, expanded the scope of the father's visitation to provide for visitation (1) every other weekend from 10:00 a.m. Saturday to 6:00 p.m. Sunday, or 6:00 p.m. Monday when that day was a federal holiday, and (2) two to four weeks in the summer, upon written notice sixty days in advance. After comment upon bias perceived in the mother's witnesses and a statement that the court "does not believe most of what she said," the March 15 order set out this finding:

[T]he mother in this case has made a premeditated and deliberate attempt to divest the father of any visitation with his daughter and the daughter's right to see and be with her father. This Court will not be a party to it.

The March 15 order also contains the following provision which the mother challenges:

Now, having ruled as aforesaid, the Court, in a further effort to get to the bottom of this matter and without imposing any punishment upon the father even though he may consider it just that, ... will require for the next three months that a monitor selected by him will accompany him on all visitations.

The purpose of this is to insure that if there [are] any further accusations or mention of child molestation, then the Court will know that the father cannot be responsible for it. The Court will have to conclude that the mother or someone connected with her in some way, is responsible for this. If it occurs, the Court will give serious consideration [to] granting custody to the father.

A panel of this Court stayed the March 15 order pending a determination of the mother's appeal. Following this court's grant of the stay, the father moved the trial court to amend the March 15 order to include the specific finding that visitation was in the child's best interests. The trial court entered an order on April 11, 1985, which reiterated a statement made by the court:

[L]et the record reflect that under no circumstances would this court have issued the decision that it did without taking fully into consideration the child's best interest.

The mother filed a separate notice of appeal from the order of April 11.

II.

Although each dispute concerning custody and visitation presents unique circumstances, the court's judgment in every case is guided by a single, unvarying standard:

[T]he welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate.

Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948). See Roe v. Roe, 228 Va. 722, 728, 324 S.E.2d 691, 694 (1985); Keel v. Keel, 225 Va. 606, 610, 303 S.E.2d 917, 920 (1983); Code § 20-107.2. This standard applies equally to contests over visitation. Oehl v. Oehl, 221 Va. 618, 624, 272 S.E.2d 441, 444-45 (1980).

The matter put in controversy by the petition to reinstate visitation must be determined in accordance with the best interests of the child. A child's continuing relationship with both parents will be an important consideration in every case. Indeed, Dr. Beal's first report on visitation informed the court: "[I]t is important for this family and in particular for [the child] to have contact with both of her parents." Furthermore, we believe that a desirable objective should be that the child will continue to receive the noncustodial parent's affection and nurture through the mechanism of visitation. See Eichelberger v. Eichelberger, 2 Va.App. 409, 412-13, 345 S.E.2d 10, 12 (1986).

Nevertheless, a court must...