Hill v. DeMott; Court of Appeals of Virginia, December 7, 2021
The mother appealed from a Circuit Court Order denying her motion to amend child custody. On appeal, Court views the facts in the light most favorable to the party who prevailed Circuit Court. In the original divorce, the parties were awarded joint legal custody of their adopted child, who has suffered from various health and behavioral issues. The original trial court noted the health and behavioral issues as well as the fact that the mother did not co-parent with the father well and found that the mother was very controlling of the couple’s daughter.
The mother filed a motion to amend child custody alleging a material change in circumstances which necessitated giving the mother sole legal custody. The mother complained that the father was becoming increasingly obstructionist as it related to their daughter’s care. On the motion to amend custody, the trial court found that there was not sufficient evidence of a change in circumstances that would necessitate amending custody.
The Court of Appeals began its analysis with the two pronged test to amend custody: “(1) whether there has been a material change in circumstances since the most recent custody award; and (2) whether a change in custody would be in the best interests of the child.” Ohlen v. Shively, 16 Va. App. 419, 423 (1993). The material change in circumstances requirement exists “to avoid the bar on relitigation that would otherwise be imposed by res judicata.” Parish v. Spalding, 26 Va. App. 566, 573 (1998). When considering whether a change in circumstances has occurred, the court must not just look to questions of the parents circumstances, but also changes involving the children themselves, such as maturity, special education needs, and any of the myriad of changes that might exist as to them. Keel v. Keel, 225 Va. 606, 611 (1983). When the trial court bases its decision upon an ore tenus hearing, those findings will not be disturbed upon appeal unless they are plainly wrong or without evidence to support them.
The Court of Appeals reviewed the evidence and found that all of the issues currently present between the parents were present at the initial divorce and did not represent a material change in circumstances and therefore found that the trial court was no plainly wrong and that the mother had not met her burden of proof.