Of late it has be fairly rare for the Court of Appeals to issue a single published opinion, but that is what happened today, and wouldn't you know it the counsel for the disappointed appellant is a name familiar to the regular readers of this blawg (both of you!). So it is a little awkward to report on the decision of the Court in Sidney Jordan Brandon, III v. Laurie Coffey.
The issue in the case was straightforward (sufficiently so that the Court takes only seven and a half pages to deal with the case): When a court is making an initial custody decision as between natural parents and the evidence shows that one parent will reside outside the Commonwealth, should the court make express consideration of the hardship this removal will have on the parent remaining in the Commonwealth with respect to the best interest determination? Now if you have a passing familiarity with the law of custody, you know that a parent who is award primary physical custody of a child in Virginia and then subsequently decides to move outside the state, they can't just pick up stakes and move. Typically, the non-custodial will have a right to object and may even be able to obtain a change of primary custody. At the very least, the court is going to have to make some hard decisions about visitation schedules if the new home if significantly distant from the non-custodial parent. However, it may surprise you to learn that when making an initial custody determination, the statutes are silent as to whether the child being taken out of Virginia is a relevant factor that the court must consider and make an express finding of its impact on the best interests of the child.
The parents in this case were never married, but were for the first ten or so years of their daughter's life amenable to shared custody by informal agreement with the mother having primary custody including when she was living overseas. This changed, however, when mother was going through a career transition and the daughter went to live with the father in Virginia. When mother subsequently returned to the United States, she wanted to resume primary custody and take the child to live with her family in upstate New York, father objected and the parties ultimately wound up in court to have the custody of the child legally determined for the first time.
This, as it turns out, was a unique (to that point) situation so far as appellate guidance is concerned and probably explains the reason that today's short opinion is going to be published. While the issues had common up in the context of divorcing parents, there is comparatively little case law about children conceived in relationships that lacked "benefit of clergy" in the old vernacular where one party was intending to take the child out of the Commonwealth if awarded physical custody.
Although the trial court issued a lengthy opinion letter (far longer than today's opinion because the court went in to great detail about the specifically required factors in making a custody determination), nary a word was said about the mother's intention to relocate the child to New York before awarding her primary custody.
Let me begin by saying that the result against my client, the father, was not entirely unexpected. First, while the fact pattern of the case was unique, it was likely that the Court of Appeals was going to consider this a difference without distinction. After all, while a few generations back there would have been scandal attached to a custody fight over a child born out of wedlock, there is really no legal distinction between married parents and unmarried parents disputing custody.
Second,during oral argument it was fairly clear that the panel, Judge Ortiz, who authored today's opinion, Judge Chaney and Sr. Judge Haley, were going to stick to the strict letter of the law that if the General Assembly did not expressly designated the future domicile of the child as a factor the trial court must consider, then it is entirely within the court's discretion to give great, little, or no weight to that issue and says as much, as little, or nothing at all about it in writing. That is actually what I expected and had advise my client early on that the Court was likely to say the this was a matter for the legislature to address, as it is not for the courts to add language to a statute that the General Assembly chose not to include.
What did surprise me about the oral argument (and the opinion) was the view expressed by two of the judges that "when they were practicing law and sitting on the trial bench" it was common practice to consider the domicile of the child in making the "best interest" determination, but to do so tacitly. I don't doubt that this is true -- and as the opinion implies, the judge in this case was aware of the situation and probably weighed it as part of his best interest determination. However, by not saying specifically that future domicile was considered (because the law does not require it), I am not sure that the "probability" that the judge considered it is much of a sop to the parent who is separated from their child by hundreds of miles.
Like a good many cases that I analyze in this space, I reach the conclusion that the the remedy for future cases lies with the elected branches. Specifically, Code § 20-124.3 needs to be amended to include whether the intended domicile of either parent will be outside the Commonwealth as one of the mandatory factors to be considered in an initial custody determination. As with all other observations, I won't be holding my breath.