In most custody cases, courts are inclined to award joint legal custody because Virginia courts are statutorily mandated to assure frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. Pursuant to Virginia Code § 20-124.3, the court considers ten factors when determining a custody arrangement that is in the best interests of the child. One of these factors is “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.”
But what about situations where a protective order prohibits the parties from directly communicating with each other? Can courts even consider joint legal custody? Surprisingly, a court may still award joint legal custody even if there is a no contact protective order between the parties.
In November 2019, the Virginia Court of Appeals in Armstrong v. Armstrong addressed the question whether a no contact protective order precludes an award of joint legal custody. The father in the Armstrong case had a protective order against the mother—meaning she was not allowed to contact the father (although she remained free to contact their child). Nevertheless, the trial court awarded the parties joint legal custody of their child. In making its determination, the trial court acknowledged that the parties were prohibited from directly contacting each other pursuant to the protective order. Nevertheless, the court found that the acrimony between the mother and father was dissipating and that they still had the capacity to cooperate, despite the no contact protective order being in place.
The father appealed the trial court’s decision, arguing that the protective order effectively made joint legal custody impossible to implement. The father relied on the definition of “joint legal custody” stated in Virginia Code § 20-124.1, as a form of custody “where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent.” The father argued that the parties were incapable of communicating under the conditions of the protective order and thus, cooperating to make decisions concerning the child was virtually impossible without violating the protective order.
The Virginia Court of Appeals in Armstrong held that the trial court did not abuse its discretion in awarding joint legal custody. Essentially, the Court explained that § 20-124.1 does not make direct communication between the parties a prerequisite for joint legal custody to be awarded. Rather, the parties in Armstrong still had the ability to communicate through counsel or other agreed-upon third parties regarding decisions that had to do with the minor child without violating the terms of the no contact protective order.
Keep in mind, however, that a court may still determine than an award of sole legal custody to one parent may be in a child’s best interests when the parties have a protective order. The Court’s decision in Armstrong can be seen as a cautionary tale for cases where one party obtains a no contact protective order for the purpose of keeping the other parent out of the child’s life. A bit of background: the Court in Armstrong found the mother to be highly erratic and verbally abusive but also found the father to be calculating and very good at pushing the mother’s buttons to elicit an emotional reaction from her. Accordingly, when making its custody determination, the court viewed the protective order as more of a sword used by the father against the mother out of spite rather than as a shield from abuse.
The bottom line is that even if the parties have a no contact protective order, the court may still determine that they are capable of sharing decision-making responsibilities through indirect means. Thus, obtaining a protective order for an improper purpose can certainly backfire in a custody hearing.
If you are facing a child custody dispute and there is a protective order in place between you and the other parent, be sure to speak with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg, Manassas, and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.