834 S.E.2d 473
Va. Ct. App.2019Background
- Adam and Kristy Armstrong divorced after a turbulent marriage; they share one daughter, A.A., born 2016.
- Father obtained a protective order in juvenile court prohibiting mother from contacting him or the child; on appeal the circuit court modified it to bar contact only between the parents (mother could contact the child).
- Father sought sole legal custody and primary physical custody; the trial court awarded father primary physical custody but ordered joint legal custody, admitting the protective-order trial transcript into the custody record.
- The trial court found both parents had strong bonds with A.A., described mother as erratic and abusive toward father, and described father as stable but strategically attempting to limit mother’s role.
- The custody order limited direct communication between the parents ("subject to the protective order"), allowed third-party exchanges at daycare or a community office, and required contacting through counsel or agreed third parties as needed.
- Father appealed, arguing the protective order makes joint legal custody impossible as a matter of law and that the court abused its discretion in finding joint legal custody was in the child’s best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a no-contact protective order makes joint legal custody legally impossible | Armstrong: protective order barring contact between parents prevents the joint decisionmaking required by Code § 20-124.1 | Mother: parties can use counsel or third parties to communicate; the protective order does not bar necessary indirect communication | Court: Protective order does not make joint legal custody impossible; communication via counsel/third parties satisfies implementation |
| Whether awarding joint legal custody was an abuse of discretion under the child’s best interests | Armstrong: court ignored acrimony and failed to give proper weight to § 20-124.3(7) (ability to cooperate) and relied on speculative future expiration of the protective order | Mother: trial court considered statutory factors, concluded acrimony was dissipating, and tailored custody subject to the protective order to protect the child’s interests | Court: No abuse of discretion; record supports findings and joint legal custody was reasonable to protect mother’s relationship with the child and reflect existing circumstances |
Key Cases Cited
- Albert v. Albert, 38 Va. App. 284 (abuse-of-discretion standard for custody determinations)
- Elliott v. Commonwealth, 277 Va. 457 (protective orders are intended to safeguard petitioner and do not necessarily preclude third‑party communication)
- Ewing v. Ewing, 22 Va. App. 466 (trial court may award sole legal custody where parties cannot communicate, but lack of communication does not mandate sole custody)
- Vissicchio v. Vissicchio, 27 Va. App. 240 (best interests of the child is the paramount consideration in custody decisions)
- Lambert v. Sea Oats Condo. Ass’n, Inc., 293 Va. 245 (explains principal ways a court may abuse its discretion)
- Cloutier v. Queen, 35 Va. App. 413 (custody decisions must be based on circumstances existing at decision time)