## Facts

- The parties divorced in 1998; the mother had physical custody of two children (ages 12 and 10), and the father had liberal visitation.
- After the father moved to North Carolina, the children continued visiting him at his home with his new wife and her children.
- The mother moved to suspend or modify visitation, alleging continued visitation was not in the children’s best interests.
- Evidence showed the children experienced distress around visits, including apprehension and physical complaints.
- The children reported the father used threats and corporal punishment and imposed strict rules (extended Bible reading, chores, no television, little free time).
- The older child testified the father told the children their mother was a “fornicator” and “adulterer” who would go to hell and that the children would go to hell for disobeying him.
- A teacher observed behavioral changes around visits and discomfort when the father came to the school.
- A clinical psychologist testified the father’s conduct caused distress and created a risk of psychological harm, including his condemnation of the mother and statements about gender subservience.
- The trial court found the father’s condemnation of the mother harmful to the children and noted he did not complete agreed counseling.
- The trial court awarded sole legal custody to the mother, terminated the father’s in-person visitation, and limited contact to brief weekly monitored telephone calls.

## Issues

1. Whether the trial court abused its discretion under Va. Code § 20-124.2 by awarding sole legal custody to the mother and terminating the father’s in-person visitation.
2. Whether the visitation restrictions violated the father’s state and federal constitutional rights to free exercise of religion and to direct his children’s religious upbringing.
3. Whether Va. Code § 20-124.2 was unconstitutional, and whether the trial court misapplied its best-interests factors.
4. Whether the father was denied procedural due process in the custody/visitation proceedings.
5. Whether the trial court erred in denying the father’s motion to reduce child support.

## Decision

- The Court of Appeals of Virginia affirmed the trial court’s custody, visitation, and child-support rulings.
- The court held there was no abuse of discretion in terminating in-person visitation based on evidence of substantial emotional distress and risk of psychological harm to the children.
- The court held the order did not violate free exercise because the restrictions served the state’s compelling interest in protecting the children’s welfare and were directed at harmful conduct rather than religious belief.
- The court declined to consider the statute’s facial constitutionality because the claim was not preserved in the trial court.
- The court rejected the due process claim because the father received notice and a full evidentiary hearing.
- The court upheld denial of child-support modification for lack of a material change in circumstances.

## Legal Principles

- In custody and visitation matters, the child’s best interests are the controlling consideration under Va. Code § 20-124.2, and trial courts have broad discretion reviewed for abuse of discretion.
- A general presumption that parents act in their children’s best interests does not overcome findings, supported by evidence, that a parent’s conduct is harming the children.
- The state may restrict parental conduct, including conduct connected to religious practice, when necessary to protect a child’s physical or mental welfare; restrictions are permissible when justified by a compelling interest and focused on preventing harm.
- Appellate courts will not reach a constitutional challenge not properly preserved in the trial court.
- Procedural due process in custody proceedings generally requires notice and a meaningful opportunity to be heard, including the opportunity to present evidence and cross-examine.
- Child-support modification requires proof of a material change in circumstances; appellate courts defer to supported trial-court findings.

## Conclusion

The court affirmed an order ending a father’s in-person visitation and awarding the mother sole legal custody because credible evidence showed the father’s conduct caused serious distress and posed a risk of psychological harm; the limits on contact did not violate free exercise where aimed at harmful conduct and supported by the state’s interest in protecting the children, and unpreserved constitutional challenges were not reviewed.


Roberts v. Roberts, 41 Va. App. 513, 586 S.E.2d 290 (Va. Ct. App. 2003)