VIRGINIA: IN THE AMHERST COUNTY JUVENILE AND DOMESTIC
RELATIONS DISTRICT COURT FOR THE TWENTY-FOURTH
On May 22, 1991, and June 24, 1991, came the parties, M. Ismail Sloan, represented by James H. Massie, III and Mr. and Mrs. Charles Roberts, represented by Linda W. Groome each requesting custody of the child, Shamema Honzagool Sloan, upon petitions numbered J001731-01, J001731-02 and J001731-05 filed on January 13, 1986, August 27, 1986 and October 22, 1990, by Ismail Sloan, Charles and Shelby Roberts and Charles and Shelby Roberts respectively. Also present were: Lisa L. Schenkel, guardian ad litem for the mother, Honzagool Sloan; J. Thompson Shrader, guardian ad litem for the child; and W. Edward Meeks, III, County Attorney, representing the Amherst County Department of Social Services.
This Court took Jurisdiction of this case at first on an emergency basis and possible abandonment pursuant to 28 USC 1738A(c)(1) and (2) (C) (i)(ii) and subsequently retained jurisdiction on this case based upon the finding that the mother, Honzagool Sloan, no longer resided in the City of New York and had returned to Pakistan, that the child had been present in Virginia and within Amherst County for approximately four years, that the principal residence of the father was undeterminable as the evidence indicated he had resided in New York, United Arab Emirates and other countries and that the child's residence was in Virginia for approximately four years and was the home state of the child pursuant to 28 USC 1738A c(l) and (2) as well as it would appear that if Virginia (Amherst County) did not qualify as the home state then Virginia (Amherst County) would be the appropriate state pursuant to 28 USC 1738A c(l) and (B)(ii).
The Court considered the order from the State of New York, dated May 26, 1982, (A copy of said order is attached hereto (Exhibit A). That order granted custody of the child to the natural mother when the child was an infant, shortly after which Mr. Sloan brought the child to Amherst County contrary to the New York Court Order. (See, Exhibits B and C). The Court also considered the Court's Orders of August 25, September 4, and 5, 1986, in the Amherst County Juvenile and Domestic Relations Court granting legal custody jointly to Mr. and Mrs. Roberts and Mr. Sloan with physical custody to be assumed by Mr. Sloan on September 7, 1986, with visitation rights by Mr. and Mrs. Roberts and the matter was continued to October 8, 1986 at 1:30 p.m. (see, Exhibits D and E).Mr. Sloan admitted under oath that he took the child out of the United States for approximately four (4) years residing primarily in the United Arab Emirates and did not return the child or appear for the hearing set in this Court for October 8, 1986, at 1:30 p.m. The October 8, 1986, hearing was set at the August 25, 1986 hearing, 2with the father, M. Ismail Sloan, and his attorney, Stephen C. Martin, present and assistin in and consenting to said date of October 8, 1986, at 1:30 p.m.
The Court heard argument by all counsel and considered the following cases among others: Ferris v. Underwood, 3 Fa. App. 25 (1986);.Shortridge v. Deel, 224 Va. 589, 299 S.E. 2d 500 (1983); Smith v. Pond, 5 Va. App. 161 (1987); Mason v. Moon, 9 Va. App. 217 (1989); Linkous v. Kingery, 10 Va. App. 45 (1990); Bailes v. Sours, 228 Va. 96, 340 S.E. 2d 824 (1986); and Patrick v. Byerley, 228 Va. 691, 325 S.E. 2d 99 (1985). Copies of said cases are hereto attached.
.Upon considering all the evidence, the entire record, and case and statutory law, The Court finds that the custody proceeding litigated in New York and resulting in the Order of the Bronx Supreme Court dated May 26, 1982, determined the issue of custody in favor of the mother and required the father to prove a change in circumstance and that the best interests of the child would be served by awarding custody to the father. Although the mother did not appear, Mr. Sloan although proving a change in circumstances (i.e.) the wrongful removal of the child from the mother, the voluntary placement (relinquishment) of the child with the "Roberts" for approximately four (4) years, the wrongful removal of the child from the jurisdiction of this Court and the failure of the father to return the child for the scheduled hearing on October 8, 1986, and the failure of the father to appear for said hearing and his continued absence and removal of the child for a period of four (4) years from the jurisdiction, (acknowledging that the child had the benefit of travel through United Arab Emirates and other countries), he has failed to meet his burden that the best interests of the child would require him being awarded custody of the child from the mother and further that as between the father and the "Roberts" the Court finds that (a) the father voluntarily relinquished custody of the child to Mr. and Mrs. Roberts when he left the child in their care for an extended period of time, with minimal contact of any type with the child, (b) that there are extraordinary circumstance in this case, (i.e.) the violation of Court order of two different states that ruled contrary to Mr. Sloan's wishes, his minimal contact with the child while the child was with Mr. and Mrs. Roberts, his sudden removal of the child from their (Robert's) home and child's home for four (4) years, her school, caretakers and friends without notice and contrary to Court order, the failure to provide the child with stable home environment taking into consideration the age of the child, the removing of the child from any meaningful contact with her mother, the evidence as to the lack of verbal responses and communications with father (although improving) as well as others as testified to by the Department of Social services and Dr. E. Wayne Sloop, the strong display of affection and communication by the child for and with Mr. and Mrs. Roberts, the child's happiness and participation in the school setting, the reports of Dr. E. Wayne Sloop, filed herein, as well as his testimony that the child needed a stable environment and that the father's visitation should be supervised and that the bests interests of the child be served by the child remaining in the home of Mr. & Mrs. Roberts and in a school where she had actively and happily and successfully participated and achieved, that the testimony of the father showed repeated inaccurate perceptions of various individuals and authorities that could only generate a feeling of mistrust in this child toward individuals and agencies who tried to act in her best interests, that the father failed to provide the financial stability to adequately meet the needs of the child and that there was a judgment against Mr. Sloan for child support of two other children in the amount of $17,515.00, that Mr. Sloan gave conflicting and confusing testimony as to the number of women he was married to and is presently married to and would be living with, and that under Virginia law would be exposing the child to an immoral living environment, and (c) that there was a previous order by a court of competent jurisdiction (Bronx Supreme Court) determining custody in favor of the mother and against the father (Exhibit A) with father present and there having been no successful appeal of said order by the father. The law in Virginia is well settled that a parent at a later proceeding "is not clothed with the parental presumption generally accorded" a natural ,.parent McEntire v. Redfearn, 217 Va. 313, 316, (1976), Bailes v. Sours, 231 Va. 96, 340 S.E. 2d 824 (1986) and Mason v. Moon, 9 Va. App. 217 (1989). The presumption favoring the natural father has been overcome by clear and convincing evidence of a finding of divesture because of the New York Court Order.
A. The initial burden is on the non parent seeking custody to introduce clear and convincing evidence of any one or combination of elements as set forth in Bailes v. Sours, 231 Va. 96 (1986), and Mason v. Moon, 9 Va. App. 217 (1986).
B. If the presumption favoring the natural father is rebutted by clear and convincing evidence, the natural parent seeking custody bears the burden of showing that his having custody is in the best interests of the child.
C. In the case at bar, this court has found that the father voluntarily relinquished the child to the "Roberts", that there was a divesture of the father's custodial rights (not terminated) as a result of the New York court Order (which was not a temporary or consent order or an agreement) and that there are extraordinary circumstances in this case showing both the father's parental irresponsibility as well as the positive attachment and bonding that the child has for the "Roberts", her school setting and friends and other factors as heretofore set out.
And accordingly, this Court finds that the "Roberts" have by clear and convincing evidence rebutted the presumption favoring the natural father.
The Court further finds that the father seeking custody bears the burden of showing that his having custody is in the best interests of the child and that the father has failed to carry said burden and to the contrary that with the existing facts as they are, that the bests interests of the child require that custody be granted to the "Roberts".
It is accordingly hereby ORDERED and DECREED as follows:
(A) Legal custody is awarded to Charles and Shelby Roberts.
(B) With supervised visitation with the father upon the following terms and conditions:
1. The father is allowed to have only supervised visitation with the child in the amount, frequency and at such times as the counseling professionals and the Amherst County Department of Social Services dictate -is appropriate and at such times as the parties agree. The': father's visitation shall be supervised until further order of the appropriate court.
2. All costs associated with providing such supervised visitation shall be paid for by the father when said costs become due and payable according to the provider's terms.
3. However, visitation shall not resume until the mechanism has been set up by the Department of Social services to provide for said supervised visitation such that all parties are assured that the child will remain within the jurisdiction of Amherst County and Lynchburg during supervised visitation and the likelihood of the wrongful removal of the child in negated.
4. No visitation by the father with the child shall occur outside the city limits of Lynchburg or the County of Amherst until further Order of The Court. Neither the father nor his agents or employees or anyone on his behalf shall take the child outside of the city limits of Lynchburg or the County of Amherst whether on visitation or for any other reason without the specific order of this Court.
(C) This order does not constitute a divestiture of rights of the mother, Honzagool, who has not yet personally appeared, save by her guardian ad litem, before this court, and does not divest her of the right to pursue custody. The record showing the mother's requests as to custody, her desire to appear and give testimony.
(D) The natural mother, father, Mr. and Mrs. Roberts, Shamema and other family members requested to do so by the appropriate licensed and qualified mental health professionals, shall attend and cooperate in any and all counseling and/or testing to the extent and duration deemed necessary by any licensed and qualified mental health care professionals who have had reasonable experience in custody and family counseling and child counseling and the Amherst County Department of Social Services to protect the best interests of the child taking into consideration her religion, heritage and general well-being.
(E) None of the parties are to communicate anything inappropriate to the child regarding the natural parents or in any manner make statements which might undermine the child's relationship with her parents or her relationship with Mr. and Mrs. Roberts or any treating professional.
(F) Neither the father nor Mr. or Mrs. Roberts, or any of their agents or employees or anyone on their behalf shall hide, secret or make the whereabouts of the child unknown to the father, the custodians or the Department of social Services, or the mother.
(G) Mr. and Mrs. Roberts are responsible for paying 50% of the cost of the psychological testing previously done by Dr. E. Wayne Sloop and all of the expert witness fee for his court time on June 24, 1991. Mr. Sloan is to pay the remaining 50% of the cost of the psychological testing by reimbursing the Amherst County Department of Social Services in the amount of $563-00 within 30:days of the date of this Order.
(H) All costs for future counseling, testing, etc. by mental health care professionals are to be paid 50% by Mr. Sloan and 50% by Mr. and Mrs. Roberts. All payments shall be paid as they become due and payable according to the provider's terms.
The Court requested that Linda W. Groome prepare the order which was done and amended by this Court. However, for purposes of appeal this Order was made a "final" Order as of June 24, 1991. Mr. Massie, on behalf of Mr. Sloan, then noted his appeal to the Amherst County Circuit Court.
This Order was prepared and entered without the benefit of the transcripts. The petitions for custody were merged and considered together.
Nunc Pro Tunc-June 24, 1991
Lawrence Janow, Judge
Amherst County Juvenile and Domestic Relations District Court:
I, the undersigned clerk or deputy clerk of the above-named court, authenticate pursuant to Va. Code 8.01-391 (C) on this date that the document to which this authentication is affixed is a true copy of a record in the above-named court, made in the performance of my official duties.