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Khalid-Schieber v. Hussain

Court of Appeals of Virginia

April 30, 2019

SOFIA KHALID-SCHIEBER, F/K/A SOFIA TANWEER HUSSAIN
v.
HAROON HUSSAIN

          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY DAVID A. OBLON, JUDGE.

          Rebecca Wade (Wade, Grimes, Friedman, Meinken & Leischner, PLLC, on brief), for appellant.

          A. Van McFadden (The McFadden Law Office, PLLC, on brief), for appellee.

          Present: Judges Beales, O'Brien and Senior Judge Annunziata Argued at Alexandria, Virginia

          OPINION

          RANDOLPH A. BEALES JUDGE.

         This case concerns a review of a trial court's custody modification order regarding the parties' three children. At the conclusion of ore tenus hearings, the trial court entered an order largely granting father Haroon Hussain's motion for a modification of custody of the children. Mother Sofia Khalid-Schieber now challenges the custody modification order on appeal.

         I. Background

         On appeal, we are required to view the facts in the light most favorable to father because he was the prevailing party before the trial court. See Wright v. Wright, 61 Va.App. 432, 451 (2013). So viewed, mother and father were married in 2001 and had three children together - daughter S.H., son I.H., and daughter H.H.[1] At the time of the trial court's ruling in April 2018, S.H. was 15 years old, I.H. was 13, and H.H. was 9.

         In the summer of 2011, mother traveled to England with the three children, with father's consent, to visit mother's family. When she stayed longer than planned and father could not get in contact with her, he filed legal action in the Family Division of a court in London that culminated in an order directing mother to return with the children to Virginia, where the family actually lived. Mother returned to Virginia in late December 2011, and mother and father thereafter separated. They eventually entered into a custody agreement in which they agreed to joint legal and physical custody of the three children and in which they established a 50/50 schedule for physical custody. The custody agreement was entered as an order of the trial court on July 25, 2014. On December 22, 2014, the trial court entered a final decree of divorce, which incorporated the provisions of the July 25, 2014 order. In October 2015, mother married Todd Schieber.

         On January 20, 2017, father filed a "Petition to Modify Custody of Minor Children" alleging a material change in circumstances and seeking full legal and physical custody of the children. (During the ore tenus hearing on April 4, 2018, father modified his request to instead seek only joint legal and physical custody of the older children and to seek sole legal custody and sole physical custody of H.H.) On January 16, 2018, mother filed a "Motion to Modify Custody and Visitation," also alleging a material change in circumstances and seeking sole legal and physical custody of all the children. The motions of mother and father were consolidated, and ore tenus hearings on the motions were conducted between April 2, 2018 and April 5, 2018 and on April 9, 2018.[2]

         At the ore tenus hearings, father testified that, for approximately one month after the finalization of the divorce in December 2014, the parties followed the terms of the custody agreement, but that after that point, he began facing difficulties in picking up the children to spend his custodial time with them. According to father's testimony, when he would arrive to pick up the children, the children would often delay for hours, would not cooperate in leaving with him, and would refer to father derisively using pronouns such as "him" rather than using a name for him. He testified that mother would not help or encourage the children to come with him - and essentially encouraged the children not to go with him.

         Father also testified that, when the children went to his house, they would not bring along with them the clothes or sports equipment needed for their weekend sports activities, requiring father to return to mother's house to retrieve their necessities. He testified that, when he purchased clothes or other items for the children while they were in his physical custody, the children would take those items back to mother's house so they did not have their necessities when they returned to father's house. He also testified that he began to have the meetings to exchange the children at a police station and that, even there, the children would often refuse to go with him. He testified that he contacted the police on multiple occasions when he was unable to pick up the children for his custodial time. He also introduced into evidence an emergency motion that he filed with the court in July 2017 seeking to prevent the continued denial of his access to the children.

         The trial judge found that "Mother and Mr. Schieber, by their own admission, do not encourage the kids to go with father. . . . They want the rebellion from the children who refer to the father as a pronoun." The judge also found that "Mr. Schieber acts like father's not even a human being. He won't even acknowledge his presence. He is modeling poor behavior in front of the kids." In addition, "[n]either the mother, nor Mr. Schieber has been willing to encourage the kids to go with the father, and the children don't want to go with the father" for his scheduled custody time. The trial judge found that these circumstances placed father in an "absolute no-win situation." The trial judge also found that "exchanges [were] filled with great drama and anxiety."

         Mother testified that father abused her and the children. Two police officers who investigated allegations of physical and sexual abuse testified concerning their investigations. Officer Munoz testified that his investigation did not result in bringing any charges, and Detective Cooper testified that, except for one instance, father was not criminally charged and that, even for the one investigation that resulted in charges, those charges were dropped. Two officials of Fairfax County Child Protective Services (CPS) - who conducted assessments investigating allegations of abuse by father - testified that they closed those assessments because they found the claims against father to be unsubstantiated. Father also introduced into evidence documentation from CPS regarding why it closed its investigation into father. He also testified that he did not abuse the children and that, in the various investigations against him, CPS never made any findings of abuse or neglect. After considering the evidence, the trial judge found that "these investigations never resulted in a finding against the father" and that there was "no history of family abuse, despite a large amount of unproven allegations." In fact, the trial judge found that the only allegation of abuse that was proven was that of mother's assault on father during an argument when father began to record mother with his cell phone and mother knocked the phone out of his hand onto the ground. The judge noted that the consequence of the allegations against father, however, was that "[w]hile the allegations go nowhere, because they were false," they have had "the practical effect of separating the kids from the father while they're being investigated, because they must be investigated." The trial court found that, although father did not abuse the children or mother, the children - under mother's influence - "likely now believe they've been abused." In fact, the trial court found:

the mother had an active campaign to alienate the father from the children. The Court finds that [by] convincing the children of abuse that never happened, and by not actively persuading the children to have a relationship with the father, she effectively denied the father with access to, or visitation with the children. The court finds that the mother schemed to alienate [S.H.] and [I.H.] from the father[, which] was successful. The alienation of [H.H.] from the father is in progress.

         Father testified that mother also made decisions concerning the mental health of the children without notifying him. He testified that when I.H. was hospitalized in September 2017, mother delayed in informing father of his hospitalization. According to father's testimony, when father discovered I.H. had been hospitalized and attempted to visit him, father was prevented from doing so by medical staff. In addition, according to father, mother enrolled the two younger children, I.H. and H.H., in mental health treatment without first notifying father.

         At the time of the ore tenus hearings in April 2018, father testified that he had not seen S.H. since January 2017, had not seen I.H. since March 2017, and had not seen H.H. since June 2017. The trial court made a finding of fact that, during the time that father had "almost zero involvement with the children," the "mother's sole custody result[ed] in distress" to the children. The trial judge found that I.H. suffered from "suicidal ideation and depression," which led to his hospitalization at a psychiatric hospital in September 2017; that both S.H. and I.H. were taking psychiatric medications; and that H.H. had begun to hurt herself. He ...


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