In the March 8, 2022 case of Cathryn Rose Rainey v. Chad Christopher Rainey, a published opinion, the Virginia Court of Appeals ruled that the trial court did not err in awarding sole legal and physical custody of the children to father but did err in giving father the power and sole discretion regarding mother’s visitation with the children.
On appeal, mother contended that the trial court failed to identify the basis of its ruling orally or in writing as required under Code § 20-124.3. Additionally, she claimed 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 and lastly, she appeals the court's decision awarding custody to the father.
This case stemmed from a marriage where father traveled often, and children had a close relationship with grandmother, who was a caretaker as well to father admitting to an affair in 2016 and wife filing for divorce. In 2017 father abuses mother while wrestling for the phone in front of children and children become hesitant about seeing father.
Initial ruling was primary custody to mother and visitation with father with intention of rebuilding relationship. Reunification went so poorly that father ended attempts at visitation in 2019 until relationships could be restored. Mother continued to take children to therapy. 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. Mother agreed. 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 arrangement for this purpose.
The court continues:
"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 had 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, confused [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.
On October 9, 2019, following a hearing, the JDR court found a material change in circumstances had occurred since December 22, 2017 and entered an order in both children’s cases explaining its reasoning. It found that father made efforts to improve his relationship with his children, including therapy. Based on the September 2019 report from Dr. Nelson, which it incorporated into the order, the JDR court found that mother had undermined father’s reunification with the children by sending letters with alienating language to daughter. Mother was ordered not to have any contact with the children other than through therapeutic letter writing. The JDR court order gave father discretion as to when to increase mother’s visitation beyond counselor-assisted letter writing and required mother to solely bear the cost of a paid supervisor if one was chosen. Father has had the authority to permit visitation since that time.
Dr. Nelson completed yet another report dated July 17, 2020. She continued to show concern over mother’s disengagement with reunification letter writing and found that the children were having issues with mother’s lack of communication. She opined that, if mother refused any sort of supervised or therapeutic visitation, mother should have no contact. Mother did not agree that visitation should be supervised, but her non-compliance with the prescribed counselor-assisted letter writing remained an obstacle to further contact.
Following the award of custody to the father, mother appealed.
Haupt, the reunification counselor, testified that the reunification with the father had been successfully resolved. The children were quick to embrace reunification and testimony established there were marked improvements in the children’s relationship with
father within one week, to the point that they had resumed calling him “dad” and were laughing and engaging with him.
The evidence presented at trial was consistent with Dr. Nelson’s opinion that mother had been a loving, fit parent to the children prior to the custody and visitation issues with father. Dr. Nelson found mother to continue to have significant anger towards father. Dr. Nelson and Kniffen were concerned about the damage mother would do to the children’s relationship with father if given unsupervised visits. At trial, mother continued to deny any role in the children’s prior distress at visiting father. Mother’s only treating physician, expert psychiatrist Dr. Paul Spector, testified at trial. He saw mother six times, and he found no issues with mother other than Adjustment Disorder due to estrangement from her children. Dr. Spector stated that mother was fully capable of handling visitation and functioning well. He “ran her through the mill” and found no mental disease or reason for medication. He noted that the children had superb grades while in her care and that is usually a sign that home life is stable. He explained that when he saw her, she no
longer had custody of her children and she was “understandably, extremely distressed, at not being able to even see her children.” The other counselors and therapists involved did not speak with Dr. Spector.
Both parties submitted written findings of fact prior to their closing arguments at trial. The trial court found on behalf of father, and asked father to draft the order after consultation with mother. The parties were unable to agree on the language of the order—father submitted a letter to the judge explaining that the parties could not come to an agreement and were not able to schedule a hearing before the judge to resolve the disagreement about the order. The trial court wrote a letter to the parties indicating that it reviewed the parties’ findings of fact and proposed final orders and found father’s proposed final order was consistent with its ruling and
intent. Father’s proposed final order largely mirrored his previously submitted findings of fact. The trial court instructed mother to endorse father’s draft order and note her objections. The final order awarded father sole legal and physical custody. The visitation instructions crafted in the JDR court were essentially reimposed. Mother’s contact with the children was limited to letter writing; her therapist would provide approved letters to Kniffen, the children’s therapist, and the letters would then be provided to the children who would receive them with Kniffen. Mother would be required to review letters from the children with a therapist. Father was instructed to consult with the children’s therapists and expand (or rather, initiate) mother’s visitation to therapeutic visits when “Mother is appropriate and will not cause harm to the children.” Father was given sole discretion to decide when to progress beyond therapeutic visits
to supervised visitation with a supervisor of his choosing, though mother was ordered to pay the costs for father’s chosen supervisor.
Mother timely appealed to this Court.
ANALYSIS
I. Standard of Review
We review the trial court’s decisions on custody and visitation for an abuse of discretion.
Wynnycky v. Kozel, 71 Va. App. 177, 193 (2019) (“[A] trial court’s determination with regard to
[custody and] visitation is reversible only upon a showing that the court abused its discretion.”
(quoting Bedell v. Price, 70 Va. App. 497, 504 (2019))). “A trial court ‘by definition abuses its
discretion when it makes an error of law.’” Chaney v. Karabaic-Chaney, 71 Va. App. 431, 434
(2020) (quoting Shooltz v. Shooltz, 27 Va. App. 264, 271 (1998)).
Mother’s position that the trial court failed to comply with the governing statute is grounded in its instructions to endorse father’s draft
order, which reflected father’s proposed findings of fact, along with her objections to it. The actions taken by the trial court in this regard are not prohibited by law and occur with some frequency.
This case aptly illustrates the complications that can arise when one parent is given power over visitation for the non-custodial parent. From the time the JDR court delegated its power to determine visitation to father, giving him sole control over visitation since July 3, 2019, the children have not been permitted to see mother—not even in a therapists’ office, let alone in a non-therapeutic setting.
CONCLUSION
The trial court erred in giving father the power to determine mother’s visitation. We reverse the trial court’s ruling on visitation and remand the case for full review of that issue. We otherwise affirm the final custody and visitation order.
Affirmed in part, reversed in part and remanded.