Roberts v. Roberts

COURT OF APPEALS OF VIRGINIA

Present: Judge Felton, Senior Judges Coleman and Willis
Argued at Richmond, Virginia

JEFFREY SCOTT ROBERTS
OPINION BY
v. Record No. 1230-02-2 JUDGE JERE M. H. WILLIS, JR.
SEPTEMBER 16, 2003
SONJA KNIPE ROBERTS

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge

James J. Knicely (Thomas H. Roberts;
Knicely & Associates, P.C.; Thomas H.
Roberts & Associates, P.C., on briefs), for
appellant.

Susanne L. Shilling (Shilling & Associates,
on brief), for appellee.

On appeal from the termination of his in-person visitation

with the parties' two minor children and the award of sole legal

custody to Sonja Knipe Roberts (mother), Jeffrey Scott Roberts

(father) contends: 1) that the trial court erred by failing to

consider properly "the presumption that parents act in the best

interests of their children," 2) that the trial court's decision

violated his right to free exercise of religion, 3) that Code

§ 20-124.2 is unconstitutional, 4) that the trial court did not

apply Code § 20-124.2 properly, 5) that the trial court denied

him due process of law, and 6) that the trial court erred in

denying his motion for child support reduction. We affirm the

judgment of the trial court.
 BACKGROUND

On appeal, we view the evidence in the light most favorable

to the party prevailing below, affording to the evidence all

inferences reasonably deducible therefrom. See McGuire v.

McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990).

Visitation

So viewed, the evidence disclosed that the parties were

married on February 25, 1989 and were divorced by a final decree

entered June 24, 1998. Two children were born of the marriage,

N. and H., aged twelve and ten years, respectively, at the time

of the subject trial court hearing. Following the divorce, the

parties returned to court several times concerning visitation

and support. Mother was awarded physical custody of the

children with liberal visitation granted to father. After

father moved to North Carolina, the children continued to visit

him at the residence he shared with his new wife and her

children from a previous marriage. The current action began on

December 3, 2001, when mother filed a "Motion to Suspend or

Modify Visitation," alleging that continued visitation between

father and the children was not in the children's best

interests.

The children began complaining of physical ailments

immediately prior to their having to leave for visitation with

father. They were apprehensive about the visits and complained

that father threatened them and inflicted corporal punishment
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upon them. N. testified he and his sister disliked visiting

father because they were required to spend much time reading the

Bible and doing chores. He testified that father did not allow

them to watch television and allowed them no "free time."

Father told the children that mother was a fornicator and

adulterer and that she would go to hell. Once, following an

incident when the children obeyed mother instead of father, he

told them if they died at that time they would go to hell. On

another occasion, when they were with father and mother called,

father told them "the devil" was calling. N. testified that he

no longer mentions his mother in father's presence, because when

he does, father tells him not to call her "Mom" because she is a

sinner and that he should call father's present wife "Mom"

because she is "godly." Following an investigation by the North

Carolina Department of Social Services concerning father's

stepchildren, father and his present wife told N. he was a "spy

and a master of espionage." N. testified that he and his sister

lived in fear of being punished by father and that father would

threaten punishment without explaining what the punishment would

be.

Mother testified that N. and H. did not want to visit

father. On the days before scheduled visits, they feigned

illness or professed to be tired, crying and begging not to go.

She testified that they did not perform as well as usual in

school immediately before and after visitation. Ordinarily both
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do well academically. After mother unilaterally halted

visitation in August, 2001, the children's dispositions and

attitudes improved noticeably. They ceased feigning illnesses

and began looking forward to weekends. H., in particular, began

doing better in school.

Mother reported that on one occasion when father spanked

the children he said he did so because God had commanded it.

Father and his present wife insisted the children call him their

"godly father." Father refused to discuss the children's

welfare with mother. In a March 2, 2001 agreed-upon order,

father agreed to undergo counseling to improve his parenting

skills, but had not done so at the time of the ore tenus

hearing.

Denise McAllister testified that she is married to father's

present wife's first husband, Michael McAllister. She testified

that father told Michael McAllister's children (who live with

father and his present wife) that their father had deserted

them, that he was not "righteous," and that they were not

supposed to live with "nonbelievers" such as the McAllisters.

She testified that father further told the McAllister children

that because their natural father was not righteous, he (father)

was now their real father. When Michael McAllister confronted

father regarding these statements, father accused him of having

broken his covenant with God by leaving his family and asserted

that as a result, father was "[the McAllister children's] real
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daddy." Father told the McAllister children that mother was a

"wicked woman."

Erin Long, a teacher at the elementary school N. had

attended the previous year and where H. was enrolled at the time

of the hearing, testified that both children are bright and are

good students. She said she repeatedly noticed "a change in N's

personality" when he had to visit his father. Once, father came

to her class to speak to N. and N. was visibly uncomfortable,

similar to his demeanor on Mondays after visitation.

Dr. Leigh Hagan, a clinical psychologist, met with mother

and the children. Hagan testified the children were

"distressed" by father's proselytizing and by his condemnation

of mother. Hagan explained that H. was particularly at risk of

psychological damage due to father's telling her that women

should not strive to accomplish what men accomplish and that

women should be subservient to men. He opined that the danger

of psychological damage stems not only from father's teaching

these things to the children, but also from the punishments he

meted out when they did not obey his teachings.

Father admitted he has told the children that he was

disappointed in them and that they had insulted him. He

acknowledged that he had accused N. of committing "spiritual

adultery" by not reading the Bible when he was told to. He

confirmed that he believed mother was living an "ungodly" life.

He told the children that their mother had committed adultery
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and that adultery was ungodly, and that she was a fornicator and

ungodly because her fiancé lived with her and with the children

prior to her marriage to the fiancé.

The trial court held that "the only real question [before

it] is whether Dr. Roberts' conduct is such that continued

visitation between him and the children is contrary to the

children's best interests." It concluded that

[e]ven the most well adjusted child in the
world . . . would have serious problems
trying to reconcile the divergent views put
forward by Ms. Roberts and Dr. Roberts.
When those divergent views are added to the
upheaval already existing in these
particular children's lives, the children's
best interests are obviously not being
served.

The trial court noted that the parties had previously agreed

that the children would live with mother most of the time and

that mother should have primary custody. "That being true," the

trial court continued, "Dr. Roberts' telling them that the

person he chose to be their primary caregiver is an adulterer

and fornicator and will go to hell is unconscionable." The

trial court held that if father's religion "required" him to say

such things to his children, "it is outweighed by the court's

duty to protect the children's best interests. If such duty is

not required by his religion, his conduct is nothing more than a

blatant disregard for his children's best interests." Either

way, the court concluded, the situation could not continue.

Accordingly, the trial court awarded mother sole legal and
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physical custody of the children, terminated father's in-person

visitation, and limited father's contact with the children to

scheduled, telephonic visits.

Support

Father sought a reduction in his child support obligation,

asserting that his income in a new job he was taking was

$333,000, $17,000 less than the $350,000 he had been earning

previously.

However, the $3,000 a month child support father has been

paying pursuant to a July 21, 1999 order was based on his

then-salary of $180,000. That order was also based upon the

agreement of the parties. The trial court determined father's

guideline support, based upon his new annual income and mother's

income, would be $2,221.47, but denied father's request for a

reduction in child support, holding that father had failed to

demonstrate a material change in circumstances warranting a

change.

ANALYSIS

I.

Father contends that in deciding to terminate his

visitation, the trial court erred by "failing properly to take

into account the presumption that parents act in the best

interests of their children." This issue is embraced in our

analysis in Part IV and is resolved by that holding.

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 II.

Father next contends that the trial court failed to

"properly take into account" his right to free exercise of

religion and that the trial court's decision violated his

religious rights as guaranteed by the United States and Virginia

Constitutions. Specifically, he contends that the trial court's

decision infringed his "Free Exercise right to contribute to the

religious instruction of his children."

"The Free Exercise Clause of the United States

Constitution, Article I, U.S. Const. amend. I [and] the

Constitution of Virginia, Va. Const., art. I, § 16, . . .

prohibit state imposition of substantial burdens on the exercise

of religion unless the state advances a compelling government

interest which is furthered in the least restrictive manner."

Horen v. Commonwealth, 23 Va. App. 735, 742, 479 S.E.2d 553,

556-57 (1997). See also Employment Division, Department of

Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

Freedom of religion is not absolute, and "[c]onduct remains

subject to regulation for the protection of society." Cantwell

v. Connecticut, 310 U.S. 296, 303-04 (1940).

Following the mandate of Code § 20-124.2(B), the trial

court determined that continued visitation with father was

contrary to the children's best interests. That statute is

religiously neutral, does not substantially burden the free

exercise of religion, and rationally advances the legitimate
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state interest of protecting children. "[T]he protection of

children from harm, whether moral, emotional, mental, or

physical, is a valid and compelling state interest." Knox v.

Lynchburg Div. of Soc. Serv., 223 Va. 213, 223, 288 S.E.2d 399,

404 (1982). Furthermore, "[i]n any child custody decision

[involving conflicting parental interests], the lodestar for the

court is the best interest of the child," Smith v. Pond, 5

Va. App. 161, 163, 360 S.E.2d 885, 886 (1987), and the "rights

of the parents must be tempered by this guiding principle,"

Haase v. Haase, 20 Va. App. 671, 681, 460 S.E.2d 585, 590

(1995).

The trial court specifically stated that it did not

question the bona fides or validity of father's religious

beliefs. It did not challenge or limit his rights to hold or to

promote those beliefs. It did not base its decision on father's

requirement that the children read the Bible, that they do

chores, that they abstain from watching television, or that they

be denied "free time." It based its decision exclusively on

father's bitter denunciation of mother to the children, his

eschatological threats concerning mother and, on occasion, the

children, and his active undermining the ability of mother and

the children to maintain a proper and wholesome relationship.

The trial court's decision addressed the visitation issue

in the context of the compelling state interest in protecting

the children's welfare and their best interests and took into
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consideration the father's parental and religious rights.

Father remains free to instruct the children on his religious

beliefs and to teach them as he sees fit. He is barred only

from condemning and threatening mother and the children. The

mere fact that his visitation has been limited to telephone

contact does not prevent his sharing his religious beliefs. Nor

is he hindered or otherwise prohibited from practicing his

religious beliefs. Thus, the trial court's ruling did not

unconstitutionally infringe father's free exercise rights.

The trial court's order "terminated" father's in-person

visitation. However, a custody or visitation ruling is never

final. It is always subject to review upon a showing of a

material change of circumstances. Eichelberger v. Eichelberger,

2 Va. App. 409, 345 S.E.2d 10 (1986); Code § 20-124.2. The

termination of father's in-person visitation was a necessary and

appropriate remedy for father's conduct, which the trial court

justifiably found "unconscionable." Upon a satisfactory showing

that this conduct has been curbed and will not recur, father may

seek review of his visitation rights. We find the remedy

imposed by the trial court under these circumstances to be

appropriate to advance the compelling state interest in

protecting the children in the least restrictive effective

manner and to be consistent with father's parental and free

exercise rights.

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 III.

Father contends that Code § 20-124.2 "on its face and as

applied by the circuit court in this case is unconstitutional."

This Court will not consider on appeal an argument that was

not presented to the trial court. Ohree v. Commonwealth, 26

Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); Rule 5A:18. The

requirements of Rule 5A:18 apply equally to constitutional

claims. Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d

897, 900 (1992). "A [party] who fails to challenge the

constitutionality of a statute in the trial court is barred from

raising that issue on appeal." Parnell v. Commonwealth, 15

Va. App. 342, 349, 423 S.E.2d 834, 838 (1992). Father did not

assert before the trial court that Code § 20-124.2 is

unconstitutional. Accordingly, Rule 5A:18 bars our

consideration of this question on appeal. The record reflects

no reason to invoke the good cause or ends of justice exceptions

to the operation of the rule.

IV.

Father next contends that the trial court erred in finding,

based on the criteria set forth in Code § 20-124.2, that

continued visitation with him was not in the children's best

interests.

In determining custody, the court shall
give primary consideration to the best
interests of the child. The court shall
assure minor children of frequent and
continuing contact with both parents, when
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 appropriate, and encourage parents to share
in the responsibilities of rearing their
children. As between the parents, there
shall be no presumption or inference of law
in favor of either. The court shall give
due regard to the primacy of the
parent-child relationship but may upon a
showing by clear and convincing evidence
that the best interest of the child would be
served thereby award custody or visitation
to any other person with a legitimate
interest. The court may award joint custody
or sole custody.

Code § 20-124.2(B).

In custody determinations, "the controlling consideration

is always the child's welfare . . . ." Sutherland v.

Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992). In

determining what custodial arrangement serves the best interests

of a child, the court shall consider the factors enumerated in

Code § 20-124.3. These factors include "[t]he relationship

existing between each parent and each child, giving due

consideration to the positive involvement with the child's life,

the ability to accurately assess and meet the emotional,

intellectual and physical needs of the child;" the needs of the

child; the role that each parent plays in the upbringing and

care of the child; "[t]he propensity of each parent to actively

support the child's contact and relationship with the other

parent;" "the ability of each parent to cooperate in and resolve

disputes regarding matters affecting the child;" and "[t]he

reasonable preference of the child . . . ." Code § 20-124.3.

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 A trial court is not required to quantify or elaborate on

what weight or consideration it has given to each of the factors

in Code § 20-124.3 or to weigh each factor equally. See Sargent

v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599 (1995).

It is vested with broad discretion to safeguard and promote the

child's interests, and its decision will not be reversed unless

plainly wrong or without evidence to support it. See Farley v.

Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990).

The record demonstrates that the trial court carefully

weighed the evidence and considered the factors set forth in

Code § 20-124.3, as required by Code § 20-124.2. Its decision

properly focused on the best interests and welfare of the

children.

The evidence supports the trial court's finding that

father's conduct was causing serious psychological and emotional

injury to the children. They feigned illness to avoid visiting

him. N. was visibly uncomfortable in his presence. H's school

performance improved when the visits ceased. Not only did

father not support the children's relationship with their

mother, he actively attempted to undermine that relationship

through his repeated condemnation of her. He accused mother, in

the children's presence, of being an adulterer and fornicator

and told the children that she was going to go to hell. He

referred to mother as the devil when she called the children at

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his house. He threatened the children with damnation. He and

his present wife accused N. of being a "spy."

Determination of visitation rights is a matter of judicial

discretion. Eichelberger, 2 Va. App. at 412, 345 S.E.2d at 11.

We will not set aside a trial court's visitation decision unless

that decision is plainly wrong or without evidence to support

it. Farley, 9 Va. App. at 328, 387 S.E.2d at 795. The record

supports the trial court's determination that continued

in-person visitation with father is contrary to the children's

best interests. That determination reflects a sound exercise of

judicial discretion.

V.

As his fifth question presented, father asserts the trial

court

denied [him] due process of law in the
conduct of the hearing (a) by refusing to
permit [him] to voir dire and conduct
inquiry into the reliability of the
scientific methods used by [mother's]
purported expert witness and by restricting
[his] cross-examination of said expert,
(b) by failing to exclude, and relying upon,
impermissible hearsay evidence, (c) by
relying on evidence not presented in the
hearing without notice and without affording
[him] an opportunity to rebut such evidence,
and (d) by minimizing the harm from the
children's exposure to [mother's] ongoing
adultery.

"'Statements unsupported by argument, authority, or

citations to the record do not merit appellate consideration.'"

Ryan's Family Steak Houses v. Gowan, 32 Va. App. 459, 464, 528
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S.E.2d 720, 723 (2000) (citation omitted). "Since this argument

was not fully developed in the appellant's brief, we need not

address this question." Buchanan v. Buchanan, 14 Va. App. 53,

56, 415 S.E.2d 237, 239 (1992). Having presented no argument in

his brief, father has waived this issue. See Littlejohn v.

Commonwealth, 24 Va. App. 401, 409, 482 S.E.2d 853, 857 (1997);

Rule 5A:20(e).

VI.

Father finally contends that the trial court erred by

"failing to apply the child support guidelines and/or to

adequately specify its basis for failing to do so, and in

failing to reduce [his] child support obligation to comply with

the guidelines." He argues that the trial court erred by

failing to order the presumptive amount determined by the

guidelines set forth in Code § 20-108.2.

"In a petition for modification of child support and

spousal support, the burden is on the moving party to prove [by

a preponderance of the evidence] a material change in

circumstances that warrants modification of support."

Richardson v. Richardson, 30 Va. App. 341, 347, 516 S.E.2d 726,

729 (1999) (citation omitted). The petitioner must demonstrate

a material change in circumstances from the most recent support

award. See Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d

117, 119 (1991) ("following entry of a final decree . . . a

party seeking a change in court-ordered . . . support" must
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prove a material change). "In the absence of a material change

in circumstances, reconsideration of support . . . [is] barred

by principles of res judicata." Hiner v. Hadeed, 15 Va. App.

575, 580, 425 S.E.2d 811, 814 (1993).

Father argued that the change in his salary from $350,000

to $333,000 represented a material change in circumstances.

This change amounted to a decrease of only five percent. More

important, however, the previous support order – from which

father was required to show a change in circumstances – was

based upon his then-salary of $180,000. Thus, the only change

in circumstances demonstrated by the evidence is a salary

increase of $153,000. Furthermore, the earlier order was

entered by joint consent of the parties. This record supports

the trial court's determination that father failed to

demonstrate a material change in circumstances warranting

modification of support. Thus, the trial court was not required

to apply the guidelines.

VII.

Wife's motion for an award of attorney's fees is denied.

The parties shall bear their respective costs.

We affirm the judgment of the trial court.

Affirmed.

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Felton, J., concurring in part, and dissenting in part.

I respectfully dissent as to Part II of the majority

opinion, but otherwise concur. Assuming without deciding that

the trial court applied the correct standard of review in

modifying its prior custody and visitation orders,1 in my

judgment, the trial court failed to narrowly tailor its remedy

to balance the state's compelling interest in protecting the

welfare and best interests of the children, consistent with

father's constitutionally protected interests in the care,

companionship, upbringing and religious education of his

children.

The trial court, in my view, erred in ordering the

termination of father's right to visit with his children in

person; in severely restricting his ability to communicate with

his children by telephone to a period of only thirty minutes on

Saturday evenings; and in granting to mother, in her sole

1
The trial court couched the issue in its opinion letter as
follows:

Still, the only real question is whether Dr.
Roberts' conduct is such that continued
visitation between him and the children is
contrary to the children's best interests.
The court finds that it is. Whatever can be
said about Dr. Roberts' conduct, it cannot
be denied that it is causing serious
psychological and emotional damage to the
children.

See also Code §§ 20-124.2 and 20-124.3.
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discretion, the absolute right to terminate calls when she

determined father was "engaging in the type of conduct for which

his in person visitation is being terminated."

In its final order dated April 15, 2002, the trial court

ordered:

that the sole legal custody of the parties'
children is awarded to plaintiff with no
visitation to defendant. Defendant shall
have the right to talk with the children for
up to one-half hour by telephone every
Saturday night between 6:30 p.m. and
8:15 p.m. unless otherwise agreed to by the
parties. Plaintiff has the absolute right
to monitor all such calls and the right to
end any such call if she determines in good
faith that the defendant is engaging in the
type of conduct for which his in-person
visitation is being terminated as set out in
the . . . opinion letter [also dated April
15, 2002].

(Emphasis added).

Custody and visitation determinations are among the most

difficult facing our trial courts. When a marriage is

irretrievably broken, the court is required to balance the

constitutionally protected interests of parents in the care,

companionship and education of their children with the welfare

and best interests of the children. Code § 20-124.2(B) provides

in part:

In determining custody, the court shall give
primary consideration to the best interests
of the child. The court shall assure minor
children of frequent and continuing contact
with both parents, when appropriate, and
encourage parents to share in the
responsibilities of rearing their children.
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 As between the parents, there shall be no
presumption or inference of law in favor of
either. The court shall give due regard to
the primacy of the parent-child relationship
. . . .

As the United States Supreme Court has observed:

[T]he fundamental liberty interest of
natural parents in the care, custody, and
management of their child does not evaporate
simply because they have not been model
parents . . . . Even when blood
relationships are strained, parents retain a
vital interest in preventing the
irretrievable destruction of their family
life.

Santosky v. Kramer, 455 U.S. 745, 753 (1982).

Dissenting on other grounds, then Justice Rehnquist wrote:

I do not disagree with the majority's
conclusion that the interest of parents in
their relationship with their children is
sufficiently fundamental to come within the
finite class of liberty interests protected
by the Fourteenth Amendment.

Id. at 774 (citations omitted). He further observed:

[T]he interest of parents in a continuation
of the family unit and the raising of their
own children . . . cannot easily be
overstated. Few consequences of judicial
action are so grave as the severance of
natural family ties. Even the convict
committed to prison and thereby deprived of
his physical liberty often retains the love
and support of family members. "This
Court's decisions have by now made plain
beyond the need for multiple citation that a
parent's desire for and right to 'the
companionship, care, custody and management
of his or her children' is an important
interest that 'undeniably warrants deference
and, absent a powerful countervailing
interest, protection.' Stanley v. Illinois,
405 U.S. 645, 651."
- 19 -
Id. at 787 (quoting Lassiter v. Dep't of Soc. Serv., 452 U.S.

18, 27 (1981)).

Parents have a fundamental right to determine how to raise

their children, and we presume that fit parents act in their

children's best interest. Troxel v. Granville, 530 U.S. 57, 65

(2000). The Due Process Clause protects the "fundamental right

of parents to make decisions concerning the care, custody and

control of their children." Id. at 66. In Griffin v. Griffin,

41 Va. App. 77, 581 S.E.2d 899 (2003),2 this Court stated that

"[c]ustody and visitation disputes between two fit parents

involve one parent's fundamental right pitted against the other

parent's fundamental right. The discretion afforded trial

courts under the best-interest test, Code § 20-124.3, reflects a

finely balanced judicial response to this parental deadlock."

Id. at 83, 581 S.E.2d. at 902.

In Kogon v. Ulerick, 12 Va. App. 595, 405 S.E.2d 441

(1991), this Court said:

In matters concerning custody and
visitation, the welfare and best interests
of the child are the "primary, paramount,
and controlling consideration[s]." Mullen
v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349,
354 (1948). "A child's continuing
relationship with both parents [is] an
important consideration." M.E.D. v. J.P.M.,
3 Va. App. 391, 397, 350 S.E.2d 215, 219
(1986). Except under unusual circumstances,
a child's best interests are served by
maintaining close ties between him and his

2
A notice of appeal was filed with the Supreme Court of
Virginia on July 24, 2003, by the appellee.
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 non-custodial parent. Eichelberger v.
Eichelberger, 2 Va. App. 409, 412, 345
S.E.2d 10, 12 (1986)."

Id. at 596-97, 405 S.E.2d at 442.

Included in the fundamental liberty interest of a parent to

raise his children is the right of a parent to educate his

children in his religious beliefs. Employment Division v.

Smith, 494 U.S. 872 (1990); Wisconsin v. Yoder, 406 U.S. 205

(1972); Pierce v. Society of Sisters, 268 U.S. 510, 518 (1925).

In the case of custody and visitation of children by divorced

parents, each parent has the right to educate the children,

including in the parent's religious beliefs, without government

intervention, except where there is a compelling government

interest requiring such intervention, such as the physical and

mental well-being of the children. Yoder, 406 U.S. at 230;

Prince v. Massachusetts, 321 U.S. 158, 168 (1944). If the court

determines, as the trial court did here, that there was harm

substantial enough to interfere with the father's

constitutionally protected interests with respect to his

children, it must then engage in a balancing process to fashion

a remedy that imposes the least possible infringement upon the

parent's constitutionally protected interests. Smith, 494 U.S.

at 881; Sherbert v. Verner, 374 U.S. 398 (1963); Horen v.

Commonwealth, 23 Va. App. 735, 742-43, 479 S.E.2d 553, 556-57

(1997) (citing Sherbert, 374 U.S. 398; Yoder, 406 U.S. 205).

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 In my judgment, the record in this case reflects that the

father's religious beliefs, his insistence that the children

adopt them and be governed by them, and his insistence on

telling his children that their mother and primary caregiver is

"ungodly," is at the core of the parties' continuing disputes

over custody and visitation. By father's agreement, mother was

deemed to be the proper person to be the primary caregiver of

the children, bearing the day-to-day responsibility for their

safety, well-being and upbringing. Initially, father was

granted liberal visitation rights. Subsequently, however,

father relocated to Asheville, North Carolina, some considerable

distance away from the children's home in Richmond, Virginia,

making visitation with them at his new home difficult in terms

of both time and travel. Additionally, father was remarried to

a woman who shared his religious beliefs and who had three young

children from a prior marriage. The children, whose custody and

visitation are at issue here, voiced concern that, on their

visits their father failed to give them the attention they

wanted and needed because of the added responsibilities he had

with the three stepchildren.

During periods of the children's visitation with him,

father insisted that they read the Bible, do chores, and

participate in religious activities consistent with his beliefs.

If the children did not obey his directions to read the Bible or

otherwise disobeyed him, he punished them, at times physically
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by spanking. Consistent with his religious beliefs, he told the

children that when they disobeyed him, that behavior was a sin

against both the father and God. When they acted in a manner

that displeased father, particularly in his instructions of

Bible reading, he accused them of being "ungodly" and told them

that they would likely be condemned to eternal damnation if the

offending behavior continued. On one occasion, after a period

of visitation during Christmas 2000, father sent the children

back with Bibles he had given them, with instructions that they

read them at their home. They told mother that they would be

tested on the readings when they returned to visit father. They

also reported they would face punishment if they could not pass

the test on the readings. Mother returned the Bibles to father

by mail, saying that they did not read the Bible in her house.

The record reflects that mother admitted adultery and that

at a point in time prior to her remarriage, her fiancé lived in

the home with mother and the children. Consistent with his

beliefs, father told the children that mother, their primary

caregiver, was a fornicator, was ungodly, and would be condemned

to hell. Moreover, and again consistent with his religious

beliefs, he insisted that the children call his new wife their

"godly mother."

In its letter opinion, the trial court did not question the

sincerity of father's religious beliefs. It based its finding

of harm to the children primarily on father's continued
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denouncement of mother as being a fornicator, sinful, ungodly

and condemned to hell. It further based its findings on the

children's strong resistance to the visits with father; their

fear of his punishment; their announced headaches, stomachaches,

and other physical/psychological complaints prior to their

scheduled visits; as well as their despondency after returning

from those visits. While the denouncements of mother were

consistent with his religious beliefs, they were found by the

trial court to undermine the primary caregiver's

responsibilities and authority in the eyes of the children, and

were "causing serious psychological and emotional damage to the

children." The trial court further found that father's telling

his children "that the person he chose to be their primary

caregiver is an adulterer and fornicator and will go to hell is

unconscionable."

Father argued to the trial court that he had "a duty to

tell his children the truth about their mother." The court

ruled in its written opinion, "[i]f such duty is required by

Dr. Roberts' religion, it is outweighed by the court's duty to

protect the children's best interests. If such duty is not

required by his religion, his conduct is nothing more than a

blatant disregard for his children's best interests."

In my view, the evidence presented to the trial court

clearly reflected lack of good parenting on father's part,

especially considering the ages of his children. His constant
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berating and condemnation of the children's mother and primary

caregiver was sufficient for the trial court to modify, or even

to suspend, visitation until father had agreed to desist his

harmful behavior, and had undertaken the parental counseling he

had earlier agreed to undergo. However, in my judgment, the

evidence was insufficient for the trial court to enter an order

terminating father's right to "in-person" visitation with his

children, and to severely limit even his ability to talk with

them by telephone. While the trial court found from the

evidence that there was a compelling governmental interest in

protecting the mental and physical well-being of the children,

it failed to narrowly tailor a remedy consistent with father's

fundamental liberty interests in the care, companionship and the

upbringing of his children, and his right to educate his

children in his religious beliefs.

Clearly, the father's right to freely exercise his

religious beliefs, including the right to educate his children

about those beliefs, is not limitless. See Prince, 321 U.S.

158; Cantwell v. Connecticut, 310 U.S. 296 (1940). But, any

limits on that constitutionally protected interest must be

narrowly tailored so as only to meet the compelling state

interest, while not unconstitutionally inhibiting father's right

to educate his children in his religious beliefs.

It is clear from its written opinion that the trial court

carefully considered father's exercise of his religious beliefs
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in his instruction to the children. It determined from the

evidence presented in the case that the method and manner of

father's exercise of that religious training was harmful to the

children. Father insisted that mother was evil and would go to

hell. He also told the children that they committed a type of

adultery when they did not obey him and his instructions to read

the Bible. At times he called the children ungodly. A clinical

psychologist testified at the ore tenus hearing that continued

visitation with father under these circumstances was not in the

best interests of the children's health and well-being. While

the trial court couched its decision in terms of the best

interests of the children, it is also clear in its written

opinion that its concern was with the health and well-being of

the children. "Clearly, the protection of children from harm,

whether moral, emotional, mental, or physical, is a valid and

compelling state interest." Knox v. Lynchburg Div. of Soc.

Serv., 223 Va. 213, 223, 288 S.E.2d 399, 404 (1982) (citing

Stanley, 405 U.S. at 652)).

The trial court recognized in its written opinion that

mother had requested only a modification of visitation or a

temporary suspension of visitation. It reasoned, however, that

because the trial court retained jurisdiction over matters

pertaining to child custody and visitation during the minority

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of the child,3 there was no practical difference in its order

terminating father's visitation and the mother's requested

remedy of temporary suspension of visitation, because in each

case father would have to petition the court for restoration of

the visitation rights under change of circumstances.

While the procedure to regain visitation rights may remain

the same, there is an untold ancillary impact of a court order

terminating a parent's right to visit in person with his

children.4 This Court in Eichelberger, 2 Va. App. 409, 345

S.E.2d 10, said:

The authority vested in a trial court to
decide issues concerning the care, custody,
support and maintenance of the minor
children, the visitation rights of the
non-custodial parent, and the extent to
which those rights and responsibilities
shall be apportioned between estranged
parents is a matter of judicial discretion
which courts must exercise with the welfare
of the children as a paramount
consideration. See Allen v. Allen, 188 Va.
717, 721, 51 S.E.2d 207, 209 (1949); Code
§ 20-107.2. In the great majority of
reported cases in which courts have been
called upon to resolve conflicts between
custodial and non-custodial parents, the
disputes have involved areas of fundamental
rights, such as education and religion. The
decisions in those cases reflect a
reluctance to intervene absent a showing of
harm to the child's welfare. . . . When
conditions are placed on visitation between

3
See Code § 20-124.2.
4
The trial court made no finding that father was an unfit
parent. See Troxel, 530 U.S. at 65 (parents have a fundamental
right to determine how to raise their children; fit parents are
presumed to act in their children's best interest).
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 a non-custodial parent and his child, it
should be with awareness that, except under
unusual circumstances, maintaining close
ties with the non-custodial parent is in a
child's best interest. . . . [W]hen
visitation privileges have been liberally
granted without restriction, absent a
finding by the court that the non-custodial
parent has acted without concern for the
child's well-being or best interest, has
demonstrated irresponsible conduct, has
interfered with basic decisions in areas
which are the responsibility of the
custodial parent, or finding that the
activity which is questioned by the
custodial parent presents a danger to the
child's safety or well-being, neither the
custodial parent nor the court may intervene
to restrict activities during visitation.

Id. at 412-13, 345 S.E.2d at 11-12 (citations omitted).

I concur with the majority that there was sufficient

evidence to affirm the trial court's finding that there needed

to be a modification, or even temporary suspension, in the

previously ordered visitation, including the father's promise to

seek counseling in parenting skills. However, I would reverse

and remand to the trial court with instructions to consider a

remedy narrowly tailored to accommodate the state's compelling

interest of assuring the physical and mental well-being of the

children, while not unduly limiting the father's fundamental

right to the care, companionship, upbringing and religious

education of his children.

In my view, the trial court has multiple remedies available

to it, short of termination of visitation, to insure the

children's visitation with their father would be without concern
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for their mental and physical well-being. Moreover, Code

§ 20-124.2 specifically grants to the trial court authority to

punish for contempt any willful failure of a party to comply

with the provisions of its custody or visitation orders.

For the above reasons, I would remand to the trial court to

narrowly tailor a remedy to accommodate the state's compelling

interest to protect the children from harm, consistent with

father's constitutionally protected interests in the care,

companionship, upbringing and religious education of his

children.

I respectfully dissent from Part II, but otherwise concur

with the majority opinion.

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