Opinion
Docket No. CH05-3054
02-27-2007
RE: Steven P. Myran v. Patricia L. McNulty
Bobby W. Davis, Esq.
Ocean Plaza Corporate Centre
303 34 Street. Suite 8
Virginia Beach, VA 23451 Christine Delfino Jaigobind, Esq.
One Columbus Center, Suite 600
Virginia Beach, VA 23462 Robin L. Tolerton, Esq.
5735 Poplar Hall Drive
Norfolk, VA 23502 Dear Counsel:
In this child custody proceeding, the Court today grants the primary physical care and custody of [Redacted] McNulty-Myran and [Redacted] McNulty-Myran to their mother, Patricia Louise McNulty, with liberal visitation reserved to their father, Steven Paul Myran. The Court also grants the parents joint legal custody of both children. Sadly, the litigants in this action are two highly educated parents who love their children dearly but have demonstrated a total inability to make even the most elemental compromises. This inability to compromise has subjected these children to a custody battle that has proven destructive to their emotional well-being.
On December 8, 2006, the Court entered a decree dissolving the marriage formerly existing between the parties but reserving the issues of child custody and support for later determination. During an ore tenus hearing on December 18, 2006, the Court received evidence concerning the children's care and custody.
The parties were married on November 16, 1991. About four years later, on [Redacted] they welcomed [Redacted] into their family. [Redacted] was born on [Redacted] The father is a research professor at Old Dominion University in the field of educational research methodology. He earned his Doctor of Philosophy degree in 2000. The mother later earned her Doctor of Medicine degree. It appears that each parent supported the other during their respective periods of professional education
The father describes his schedule as flexible. His work consists primarily of research, but at times he has provided services as a consultant. Following her graduation from medical school, the mother continued her training as a resident in obstetrics and gynecology. That position required her to work long hours, at times totaling 80 hours per week. In November 2006, she voluntarily altered her career path by leaving her obstetrics residency to accept a residency in family practice. She made this change so that her schedule would not be so demanding and to ensure that she would have sufficient time to parent her children.
According to the father, he began an extra-marital relationship in 2003 with Cheryl Keel, whose son was then one of [Redacted] better friends. That relationship continued, and as a result the parties separated on February 2, 2004. The father and Ms. Keel were married on December 16, 2006, eight days after entry of the final divorce decree dissolving the parties' marriage and two days before the custody hearing.
The father propose that the children reside at least half of the time with him. His household may be describe as a "blended" family consisting of him and his wife, her two children by a prior marriage, a child of their own relationship born on [Redacted] and [Redacted], when they are with him.
In cases such as this, when both parents are fit and have demonstrated the desire and ability to exert a positive influence in the care and upbringing of their children, "the welfare of the infant is the primary, paramount, and controlling consideration of the court... ." Mullen v. Mullen, 188. Va. 259, 269 (1948). It is also recognized that when weighing "the right of a parent to custody of its minor child and the right of a child to a custodial care of a parent...society gives priority to the latter." McCreery v. McCreery, 218 Va. 352, 354(1977).
With this background, the Court will now specifically address the factors prescribed in Virginia Code § 20-124.3 for determining the children's best interests in this custody proceeding. 1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs.
[Redacted]
[Redacted] was born [Redacted]. The guardian ad litem described him in these terms: "[Redacted] is a quiet child who seems pensive, introspective, but he is quite articulate." My interview with [Redacted] leads me to agree with this description, but he was very willing to discuss any issue with me. Unfortunately, the domestic uncertainty swirling about him the past two years has, in some ways, matured him beyond his years. Sadly, he is a child who constantly witnesses turbulence between the two people who are, to him. the most important in the world.
[Redacted] physical condition is good. Because of the changing domestic situation, [Redacted] has received therapy and, on occasion, medication for emotional needs. Dr. Raleigh Phillips, clinical psychologist, evaluated [Redacted] and reported a diagnosis of "adjustment disorder with depressed mood, secondary to parental divorce." While Dr. Phillips recommends that [Redacted] continue in therapy, he does not see a need for medication at this time.
It is essential that [Redacted] have stability and reliability in his life. He advised his therapists that he would like a custody arrangement by which he and [Redacted] would spend equal time with each parent. He expressed this same desire during his communications with me. It is, in the Court's opinion, incredible that parents who are so highly educated, especially when their fields of expertise are considered, have permitted a situation to evolve in which a twelve-year-old child feels so burdened by his parents' ineptitude.
[Redacted]
[Redacted] was born [Redacted] The guardian ad litem offered the following description of her: '[Redacted] appears bright and energetic. She readily responds to all questions and is more than willing to even answer [[Redacted]] questions posed to [Redacted] The adjective that seems appropriate for [Redacted] is 'bubbly.' She is enthusiastic, energetic and is very talkative."
[Redacted] enjoys good health and carries no mental health diagnosis. Nevertheless, she too demonstrates anxiety at her present domestic situation. When I interviewed the children, [Redacted] at first refused to come into my chambers, even though the guardian ad litem and [Redacted] therapist, Barbara Maury, L.C.S.W., both of whom [Redacted] knew, were already there. Later, she asked to come and join [Redacted] during his conversation with me. Both parents escorted her to my chambers, and one could not help but notice that [Redacted] was clinging to both. It was evident that she was taking great pains to share her attention equally with each parent. 2. The age and physical and mental condition of each parent.
The father is 44 years old. He has taken anti-depress ant medication prescribed by his primary care physician but denies having suffered from depression. He also denies any significant physical illness. The Court observed nothing to refute his statements.
The mother is 45 years old. She has a history of depression that is controlled with medication. She reported a suicide attempt in the late 1980's resulting from situational influences. She reports her health as good. 3. The 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.
Each parent appears to have a good, wholesome relationship with each child. The children seem to be comfortable with each parent, and each child depends on each parent for support and approval. The children's physical needs clearly are met. During their separation, the parents have at times disagreed on the appropriate psychological treatment for [Redacted] and have not been able to resolve their disagreement in a timely manner. Nevertheless, [Redacted] needs have been met, and he appears to be much improved emotionally. Once the uncertainty of the custody issue is resolved, thus eliminating the need for the parents to "position" themselves in anticipation of litigation, there is every reason to believe that they will adopt a more cooperative spirit in their relationship as parents of [Redacted] 4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members.
With respect to both children, the circumstance of living half of the time in the father's home with one infant half-sibling and their stepmother's two children is unusual. This situation becomes an even greater concern when one considers that the extra-marital relationship between the father and the stepmother was one of the contributing factors to the children's present living conditions and emotional state. It is even further complicated by the fact that [Redacted] and the stepmother's son were once very close friends - a friendship that evidently ended because of the relationship between the father and stepmother.
Both children's love and affection for their parents do not seem to have diminished, although one detects a sadness when they speak of their parents. They appear to be exceptionally close to each other, a circumstance that is not surprising when one considers the emotional turmoil to which they have been exposed. Neither [Redacted] nor [Redacted] expresses any dislike for their stepmother or her children. 5. The role that each parent has played and will play in the future, in the upbringing and care of the child.
Both parents have played significant roles in the children's lives and there is every reason to believe that each will continue to contribute significantly to the upbringing and care of the children. Illustrative of the parents' dedication to the children is the primary role each played while the other was continuing professional education and training. 6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.
Each parent actively supports the children's relationship with the other parent. The point of disagreement is sincerely held: the father believes that the children should be with each parent an equal amount of time; the mother believes that such a schedule is detrimental to the children's welfare. 7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.
Clearly, both parents have amply demonstrated a willingness to maintain close relationships with the children. The fact that the children and the parents continue to enjoy a loving relationship is evidence of each parent's ability to foster the growth of these relationships. 8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.
Each child is capable of expressing a preference, and, indeed, both of them desire to be with each parent an equal amount of the time. The children spontaneously expressed their views on this issue to the Court. During my interview with them, they were never asked, directly or indirectly, to express any opinion about who should or should not have their custody. In the Court's view, the children's preference to spend equal time with each parent reflects a desire to be neutral in their parents' eyes. The guardian ad litem reported, and the Court agrees, that the children know more about this litigation than they should. This knowledge, too, must exert some influence on them to adopt such a neutral stance. 9. Any history of family abuse as that term is defined in § 16.1-228.
There is no history of family abuse. 10. Such other factors as the court deems necessary and proper to determine.
Both parents are fit. Both parents are loving and supportive of the children, and each possesses many talents that have and will continue to exert a beneficial influence on the children's development. Nevertheless, as the guardian ad litem commented in her report, "it is important to consider which parent has put the children's interests above his/her own... ." The father, probably without considering the emotional effect on the children, chose to enter into a most intimate relationship with the mother of one of [Redacted] better friends. Before the parties were divorced, the father and his paramour established a joint household in which [Redacted] resided with Ms. Keel's children. The detrimental effect of this situation on the children cannot be seriously questioned. Significantly, the father does not recognize the detrimental effect of the domestic torment he fostered upon the children.
In contrast, the mother changed the direction of her medical training to ensure that she would have the time to provide consistency and stability for the children. She has a male friend but, from all indications, he does not reside with her nor do they share the same bed when the children are present. She has definite, workable plans for the children's care and education.
In sum, with regard to the children, the mother has placed their welfare first in her life, subordinating her own career and social life to their needs. In contrast to the father, she has demonstrated a mature, considered judgment with regard to their needs.
Having considered all of the evidence, the Court is of the opinion that the children's best interests will be served by granting their primary care and custody to the mother with reasonable and liberal visitation reserved to the father. If the parties cannot agree on an appropriate visitation schedule, the Court is prepared to resolve that issue without further hearings. The Court also request that if the parties desire a hearing on child support, that they schedule one without delay.
Counsel are requested to submit an appropriate order not later than March 7, 2007.
Sincerely,
Charles E. Poston
Judge CEP/nm