Melanie Lynn Rhodes v. Delmar Lang and Susan Lang
66 Va. App. 702
| Va. Ct. App. | 2016Background
- Mother and father had four children in Ohio; father died in 2011. Paternal grandparents (the Langs) had ongoing contact but mother later cut off contact and sent a no-trespass letter.
- The Langs sued in Ohio for visitation; an Ohio magistrate, the Wayne County Court of Common Pleas, and the Ninth District Court of Appeals ultimately entered and affirmed a final order granting the Langs periodic visitation.
- While the Ohio appeal was pending, mother relocated the children from Ohio to Virginia (Dec. 2013). Mother later requested registration and amendment of the Ohio order in Virginia (Prince Edward JDR court).
- The JDR court awarded visitation to the Langs; mother appealed to the circuit court and argued Virginia’s “actual harm” standard should apply to her motion to amend the Ohio order.
- The circuit court applied Virginia’s modification standard (material change + best interests), found visitation in the children’s best interests, held mother in contempt for obstructing visitation, and ordered attorney’s fees and potential jail purge conditions. Mother appealed to the Court of Appeals of Virginia.
Issues
| Issue | Mother’s Argument | Langs’ / State’s Argument | Held |
|---|---|---|---|
| Applicable legal standard for a petition to amend/modify an existing out-of-state visitation order | Virginia should apply the “actual harm” standard used when a fit parent opposes third-party visitation (require showing actual harm to child without visitation) | Where a prior final, valid visitation decree exists, the movant must show a material change in circumstances and that modification is in the children’s best interests (Keel test) | Held: Apply material change + best interests. “Actual harm” standard is inapplicable to motions to modify an existing, final visitation order. |
| Whether applying the modification standard infringes mother’s constitutional parental rights | Applying “actual harm” is required to protect parental liberty interests under Troxel | Requiring proof of material change and best interests to modify a final decree does not violate parental rights | Held: No constitutional violation; modification standard is consistent with Troxel. |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (recognizing parental liberty interest in custody decisions)
- Keel v. Keel, 225 Va. 606 (Va. 1983) (two-part test for modification: material change and best interests)
- Albert v. Ramirez, 45 Va. App. 799 (Va. Ct. App. 2005) (modification of an existing custody/visitation decree requires material change + best interests; “actual harm” inapplicable)
- Griffin v. Griffin, 41 Va. App. 77 (Va. Ct. App. 2003) (describing use of “actual harm” standard in disputes between fit parent and non-parent for initial visitation determinations)
- Williams v. Williams, 256 Va. 19 (Va. 1998) (discussing protections when a fit parent’s decision conflicts with third-party visitation requests)