Opinion
Record No. 2059-93-4
Decided: October 25, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, F. Bruce Bach, Judge
Affirmed.
Doreen S. Williams (Matthews, Snider Williams, on briefs), for appellant.
Joyce M. Henry-Schargorodski (Gaughan Schargorodski, on brief), for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is affirmed.
I.
Appellant concedes and we find that the trial court had proper jurisdiction to hear this matter under Code Sec. 20-126 (UCCJA) subparagraph 4 because the child and both parents have a significant connection with the Commonwealth.
II.
The trial court did not err when, upon adducing certain facts at a visitation hearing, it sua sponte temporarily changed physical custody of the minor child to the father where a full custody trial and psychological evaluation was to follow within six weeks time. The record in this case contains evidence of numerous material changes of circumstance, any one of which would have justified the trial judge's decision to temporarily change custody. The most significant change of circumstance was the mother's questionable mental stability. The judge indicated that he had serious concerns about the mother's mental health and its effect on her child. The evidence in the record supports his concerns.
We agree with the father in this case that the trial court's decision to temporarily change custody pending a psychological evaluation of the mother is properly analyzed under the common law doctrine of parens patriae. "This power is separate and distinct from the purely statutory power that a circuit court may exercise in a [custody] proceeding," Verrocchio v. Verrocchio, 16 Va. App. 314, 318, 429 S.E.2d 482, 485 (1993) (citations omitted), and is used by the Commonwealth "to watch over the interests of those who are incapable of protecting themselves. In child custody cases, the equitable nature of this doctrine focuses the power of the court on the best interests of the child. 'In all suits or legal proceedings, of whatever nature, in which the . . . rights of a minor are involved, the protective powers of a court of chancery may be invoked whenever it becomes necessary to fully protect such rights.' " Id. at 318-19, 429 S.E.2d at 485.
We find no merit in the mother's due process argument. The mother was fully heard on the issue of custody in August, only six weeks after the June 24, 1993 hearing. The father was scheduled to have four to five weeks of visitation with his son during that six weeks period. While there was a change from sole custody of the mother to joint legal custody with physical placement with the father, the trial court's order constituted nothing more than an extension of the son's visitation with his father during what the court perceived as "a very volatile situation." In the interim six weeks prior to the final hearing, the mother had visitation with her son every other weekend and was able to maintain daily phone contact with him. Under these circumstances, we do not find that the trial court's sua sponte order to temporarily change custody harmed the mother in any way.
III.
Whether the trial judge erred in awarding custody to the father, contrary to the expert's opinion, is a matter within the judge's sound discretion. "On review the 'decision of the trial judge is peculiarly entitled to respect for he saw the parties, heard the witnesses testify and was in closer touch with the situation than the [appellate] Court, which is limited to a review of the written record.' " Sutherland v. Sutherland, 14 Va. App. 42, 44, 414 S.E.2d 617, 618 (1992) (citing Brown v. Brown, 218 Va. 196, 237 S.E.2d 89 (1977)). The trial court will not be reversed in the absence of a showing that the discretion given has been abused and, in this case, we find that the record does not show that the judge abused that discretion.
Although the expert recommended that the child be given to the mother, he did so with great apprehension. He noted that the father was the more stable of the two parents and that he was very apprehensive about the mother's mental state. He found that the mother used the child as a confidant and was emotionally dependent upon him. The mother portrays to the son that his father is someone that he cannot trust, is a danger, and a violent person. The psychiatrist said that the son had adopted the mother's view of the father because she is his primary attachment. The psychiatrist said that the mother was obsessed with her son.
On the other hand, the psychiatrist found that the father was a stable person, who shows good judgment, good insight, and now has a good second marriage. The father is someone who maintains some distance. On the ASPECT, which tests parental skills, the father scored in the 76 percentile and the mother in the 46 percentile. The psychiatrist found that the father would be less likely to frustrate a relationship with the other parent if he had the child. Thus, there was evidence to support the finding by the trial court that it would be in the best interest of the child to be in the custody of the father.
IV.
Whether the court erred in not allowing the child to testify about his preference to live with the mother is also a matter within the discretion of the trial judge. "We presume the trial court thoroughly weighed all the evidence and decreed custody as it believed would be to the best interest of the child." Sutherland at 44, 414 S.E.2d at 618 (citations omitted). We cannot find, under the circumstances of this case, an abuse of discretion regarding the trial court's decision not to allow the son to testify that would require reversal.
In this case, the court assumed that the child wanted to live with the mother which is what the mother proffered his testimony would show had the son been allowed to testify. The judge allowed the mother to testify verbatim as to what she thought the child would testify, and the psychiatrist testified that the child preferred to be with the mother. The trial judge's theory was that the child obviously wanted to be with the mother. However, the judge did not trust the motives of the child because the psychiatrist said that the child would try to please the mother.
The trial judge was not faced with a situation where all things being equal it would be best to let the child go where the child wished. The trial judge was concerned about the psychological pressures put on the child by the mother, and it was the trial judge's decision to alleviate some of those stresses by putting the child with the father. In this regard, we cannot say that the trial judge abused his discretion.
Affirmed.