Rainey v. Rainey

74 Va.App. 359

869 S.E.2d 66

Cathryn Rose RAINEY

v.Chad Christopher RAINEY

Record No. 0572-21-2

Court of Appeals of Virginia, Richmond.

MARCH 8, 2022

Taylor B. Stone (Janus & Stone, P.C., on brief), for appellant.

Alexandra D. Bowen (Jamie L. Allgood ; Linda R. Scott, Guardian ad litem for the minor children; Bowen Ten, PC; Linda R. Scott, PLC, on brief), for appellee.

Present: Chief Judge Decker, Judges Malveaux and Friedman

OPINION BY JUDGE FRANK K. FRIEDMAN

Cathryn Rose Rainey ("mother") appeals from the trial court's decision in a custody and visitation dispute between mother and Chad Christopher Rainey ("father"). The parties have two minor children ("daughter" and "son").

Mother asserts a series of errors in the trial court's handling of the custody and visitation proceedings below. She argues that the trial court misconstrued its de novo fact-finding and decision-making obligations and, instead, acted as an appellate tribunal in simply "affirming" the juvenile and domestic relations district court's rulings. She further contends that the trial court failed to identify the basis of its ruling orally or in writing as required under Code § 20-124.3. Mother also claims that the trial court erred by abdicating its authority to decide visitation and by granting father, in consultation with counselors, the power to decide when and whether to expand her visitation. Finally, mother challenges the trial court's decision to award sole legal and physical custody of the children to father.

We affirm in part, reverse in part, and remand the visitation determination to the trial court.

FACTUAL BACKGROUND ¹

A. The Family Unit is Roughly Upended

Father and mother were married for sixteen years. For most of the marriage, mother was the primary caregiver to daughter and son, as father traveled for work around 130 to 140 days a year. By all accounts, mother was a loving and attentive parent who had good relationships with both children. Mother and father lived with the children in mother's parents’ house from the time son was an infant and daughter was born. The children were very close with their grandmother ("grandmother"), who was a major part of their upbringing and helped raise the children; she helped mother take care of them while father was traveling for work and helped father with the children if mother was not home.

In 2016, when son was eight years old and daughter was four years old, father announced that he was having an affair, and, according to trial testimony, did a very poor job of communicating this information—and his imminent departure from the family home—to his wife and children. He testified that the manner in which he delivered this news to his son was "probably one of the stupidest things I have ever done." A contentious divorce ensued. Tensions between mother and father were high. For example, in 2017, there was an incident in which father assaulted mother and wrestled a phone from her in front of the children. Father also acted aggressively toward mother and grandmother with the children present on several other occasions. After the parties’ separation, the children exhibited anxiety and fear about visiting father.

B. The Post-Separation Relationship Between Father and Children

The trial court entered a final consent custody and visitation order on December 22, 2017. This order granted the parties joint legal custody but gave mother primary physical custody and father visitation. The order directed the parties to continue to follow instructions from the clinical visitation supervisor and to gradually increase father's visitation. The trial court remanded further custody and visitation issues to the juvenile and domestic relations district court ("JDR court").

Visitation with father did not go well during this time frame. Testimony established that the children were reluctant to visit father, particularly overnight, and treated him disrespectfully. Father also acknowledged, in retrospect, he may have tried to introduce his new girlfriend (now wife) to the children too quickly. The reunification process with the children and father was encouraged through therapy and counseling; this required multiple, weekly therapy sessions between the children and their therapist, and separate sessions between the children and a reunification counselor. Mother was left primarily responsible for arranging these visits within her schedule and the children's, as well as tasked with transporting them to the appointments. For example, it fell on mother to take the children to these sessions thirty-seven times in 2017. Father complained that the children remained reluctant to visit with him and were particularly unhappy during overnight visits with him; he blamed this on mother's behavior. A.J. Johnson was the professional "boots on the ground" counselor helping the parties parent in live time. He testified that he did not see mother doing anything to obstruct father's relationship with the children and she "had no problem with [father] seeing [them]." In early 2019 father, himself, cut off visitation with an explanation that it was not good for him or the kids to continue without first repairing their relationship.

C. Mother Consents to Letting Father Assume Temporary Physical Custody

Father then filed motions with the JDR court to either transfer physical custody to him or increase his visitation. He alleged that mother had failed to facilitate visitation and had not supported the relationship between father and the children. In response, mother agreed to let father have full custody temporarily as a bridge to fostering reunification.

In light of the parties’ agreement, the JDR court entered a temporary consent order on July 3, 2019, transferring physical custody to father. The order explains that the parties reached this agreement after speaking with Dan Kniffen ("Kniffen") (children's therapist) and Wendy Haupt ("Haupt") (reunification counselor). The judge had a meeting in camera with the children. The temporary order gave mother contact time only as the parties agreed after consultation with Kniffen and Haupt. The order itself did not restrict mother's communication with the children other than this proviso—in other words, it did not limit mother to communicating with her children through letters at this point. (This restriction was added later.) Both parents were instructed to continue their individual therapy, co-parenting counseling, and appointments with Dr. Nelson, a psychologist involved with the reunification process.

Mother testified that she agreed to switch custody to father to encourage the children's relationship with father, and father did not dispute that mother agreed to the temporary custody switch for this purpose.² The temporary order explained it was the parties’ intention to work toward shared physical custody. The testimony and evidence at trial showed that mother believed this arrangement would be temporary.

Instead, since consenting to this arrangement, mother has not seen her children since July 3, 2019. The children have also not seen grandmother, a daily presence in their lives, since July 2019, though father has allowed daughter to exchange occasional letters with grandmother.

D. Father and the Counselors Strictly Limit the Children's Contact with Mother

The reunification program to get father back in the children's lives was premised on immersing the children in contact with father. It is apparent that mother struggled with the relinquishment of her children, and her loss of contact with them, shortly following the July 3, 2019 transfer of custody to father. Dr. Nelson referred to this as "buyer's remorse."

Dr. Nelson prepared reports in connection with the custody and visitation proceedings; in the July 31, 2019 report Dr. Nelson explained daughter had written mother that she wanted to come home because she was unhappy, mistreated, and no one was listening to her. Following this communication, mother wrote a letter to daughter and tried to deliver it through one of the therapists involved in the case. In the offending letter—in addition to urging daughter to give father a chance—mother wrote: "I know you are scared, sad, confussed [sic] and angry right now. You are feeling like you are being punished and you are, but not for anything you did .... You don't deserve this." Dr. Nelson was concerned that this type of language was counter-productive to reunification and, in conjunction with mother's difficulty with therapy, Dr. Nelson concluded that mother should not have any unsupervised contact with the children. Mother and daughter were also caught passing notes clandestinely—without counselor permission—through an intermediary at daughter's gymnastics class. This raised concerns for the counselors about mother's boundaries and ability to follow rules.

Dr. Nelson completed another report on September 16, 2019, in which she indicated that the children were doing well with father.³ Dr. Nelson explained that she, and the other professionals involved, thought it was in the children's best interest to have contact with both parents, so long as both parents behaved appropriately. Dr. Nelson also explained that mother was so angry at father, unpredictable, and lacking in insight that exposing the children to her would be harmful; son could have increased depression, and daughter's anxiety could be heightened. But, Dr. Nelson said this was a "difficult" thing for her to opine because mother "[had] done so many good things as a parent ... until [custody was switched on July 3, 2019,] and the children miss, need, and want to see her." Dr. Nelson explained that mother had been instructed to write letters to the children with the assistance of counselors in order to begin reestablishing contact but she had disengaged from participation in the therapeutic letter writing process.

E. The JDR Court Order Gives Custody to Father and Puts Visitation in Father's Control

On October 9, 2019, following a hearing,...