This case, Michael Powell v. Melanie Knoepfler-Powell comes out of the Circuit Court of Fairfax County when the father appeals the Custody and Child Support Order entered on entered on May 9, 2022. Mr. Powell argues that the trial court erred by not modifying
his custodial time with the parties’ minor child and awarding Melanie Knoepfler-Powell (mother) with final decision-making authority regarding the child’s medical care. The father also believes the court erred by misinterpreting child's testimony (a 9-year-old) with her own hand-written notes. The parties were divorced in 2017 and in 2021, Mother dismissed a request allowing her to move to Alabama because Father objected requesting an injunction, so Mother filed a modification of the order, followed by Father also filing a modification. The Father knew he would be facing duty in Iraq soon and he did - from July 2020 to July 2021. The issue of the child testifying became the center of this case with the entire hearing seemingly surrounding around this 9-year old's testimony regarding visitation with her dad, which had never been of issued before.
Father was living with his girlfriend and her daughter in the former marital residence, where the child grew up. Father claimed the child and his girlfriend’s daughter “get along great” but admitted that they had some “squabbles” like siblings do. Father described the child’s relationship with his girlfriend as “wonderful” and “growing.” At the end of the first day of trial, the trial court raised the issue of the child testifying and father reiterated his objection. Father emphasized that the trial court would hear from numerous witnesses who could testify about the child and her relationship with the parties, so it was “not necessary” for the child to “be exposed” to court. Father was concerned about the child’s well-being and the unknown “potential harm” to her for having to testify. He argued that the child’s well-being “outweighs the benefit . . . of being able to hear whatever [the child] might have to say.”
Mother’s counsel informed the trial court that she had spoken with the child about the court proceeding and the child wanted “to be heard.” How much input did the mother have here? The court determined considering the child knew of the proceedings and there was no evidence that testifying would be “psychologically detrimental,” the trial court found “no reason to restrict the child from appearing.”
After hearing the parties’ arguments, the trial court found that testifying would not be “any more harmful [to the child] than already being in this . . . situation.” Following the trial court’s ruling, the child entered the courtroom and met the judge; she
stated that she had “brought a few notes” with her. The trial court told the child that she could refer to them if she wanted. The trial court then questioned the child regarding her competency to testify, and ultimately, neither party objected to the child’s qualifications for testifying.
The trial court questioned the child about her parents. The child explained that when father returned from Iraq and had more time to spend with her, she thought it was “good to see him a little bit,” but she was “used to hanging out with mom and stuff” and did not “want to go back.” When the trial court tried to clarify what she meant, the child did not have an immediate response. The trial court then asked her if she wanted to look at her notes. The child informed the trial court that they were “not really notes” because she “wrote a whole book about it.” The child shared her notes with the trial court and told the judge that she wrote it “yesterday and today.” The trial court told counsel that it had not decided whether it would consider her notes, but it wanted to “review [them].” After taking a “quick look” at the child’s notes, the trial court asked the child about her dog, with whom she said she was “[v]ery, very close.” Her notes contained references to her dad not taking her request to take her dog to the vet seriously and then telling her she didn't need to have her stuffed animal with her. The trial court then asked the child about her relationship with father. The child could not express to the trial court what father “could do better” to make things more “comfortable” for her. The trial court asked the child whether she had told father about “[s]ome of the things that [she] had in the notes,” and the child indicated that she had not because she was “worried” that he would not like them. The trial court suggested that she should tell him how she feels, but she was reluctant to do so. Further, the child testified that sometimes mother helped her express her feelings to father. The trial court then emphasized that it, not her parents, would be deciding what happened.
Ultimately, the child said that she wanted to live with mother and visit father when she wanted. She also indicated that she did not want her parents to call her “every day” when she was at the other parent’s house because sometimes, she was busy and did not want to talk. After counsel had a chance to ask questions of the child, the trial court asked the child about her stuffed animal, which was at mother’s house. The trial court returned the child’s notes to her. After the child left the courtroom, the trial court informed the parties that before it had returned the child’s notes to her, it had surreptitiously made a copy. The trial court indicated that it intended to share the child’s notes with the parties and wanted to admit the notes as a sealed demonstrative exhibit because the child adopted some of the contents as her testimony. The trial court informed the parties that it would hear any objections to it being admitted as demonstrative and whether it could consider the contents at the next hearing. The trial court noted that as a demonstrative exhibit, it had “no evidentiary value in and of itself.”
Mother did not think that she and father had been “effective joint decision-makers” and did not envision matters changing until the child had therapy. The trial court concluded that “for better or for worse,” the child’s “pillars of security [were] being threatened.” The trial court could not “disregard” the child’s feelings and agreed with the parties that therapy could help the child and her relationship with father.
The trial court held that modifying visitation would be “damaging” to the child. The trial court further ordered the child to attend therapy with a counselor covered by insurance and of “mother’s choosing” to improve the relationship between the child and “both parents, but especially with . . . father.” The trial court also held that mother would have “final decision-making authority [for the child] with respect to issues of medical care which include mental health.”
Following the trial court’s ruling from the bench, father filed a motion to reconsider. The trial court denied father’s motion to modify custody and visitation and awarded mother with “final decision-making authority regarding all decisions about the child’s care which are medical in nature, including but not limited to decisions regarding the selection of a therapist for the minor child.”
On appeal, the court upheld the trial court's decision but denies payment by Father of Mother's attorney's fees.
This case, which seems to have originated as a simple visitation modification, where no real mention of issues with Dad were noted, this turned into a long trial, debating about the child testifying and the court letting a 9-year-old control the outcome.
Too much weight placed on and given the given to the child here?