THE CIRCUIT COURT OF ROCKINGHAM COUNTY Bruce D. Albertson,
William C. Scott IV (Law Office of William C. Scott, IV, PLC,
on brief), for appellant.
Derrick W. Whetzel; W. Andrew Harding, Guardian ad litem for
the infant child  (Convy & Harding, PLC, on
brief), for appellee.
Present: Judges O'Brien, AtLee and Athey Argued at
GRACE O'BRIEN, JUDGE
Christopher Armstrong ("father") and Kristy Marie
Armstrong ("mother") were married on May 16, 2015,
and are the parents of one daughter, A.A.,  born July 11,
2016. After a trial on issues of divorce, custody, and
visitation, the court granted father primary physical custody
of A.A., but it ordered that the parents share joint legal
custody. Father appeals the court's award of joint legal
custody. He contends the court abused its discretion as a
matter of law by ordering joint legal custody because a
protective order prohibits "contact of any kind"
between the parties. Further, he argues the court abused its
discretion by finding that joint legal custody was in the
child's best interests.
and mother had a tumultuous marriage with several separations
and reconciliations. During their separations after
A.A.'s birth, the parties agreed to shared custody
arrangements, and they separated permanently on January 20,
filed for divorce on October 10, 2017, and he requested sole
legal and primary physical custody of A.A. On November 27,
2017, father obtained a protective order against mother in
the Rockingham County Juvenile and Domestic Relations
District Court. Pursuant to Code § 16.1-279.1, the order
prohibited mother from having any contact with either father
or A.A. Mother appealed to circuit court. Following an
evidentiary hearing, the court granted father a protective
order until December 11, 2019, but modified the conditions to
only prohibit mother from contacting father, not
The parties stipulated that the transcript and evidence from
the protective order trial would be admissible in the divorce
and custody case.
their marriage and while the divorce and custody trial was
pending, mother and father initiated various criminal and
civil proceedings against each other, including a child abuse
claim filed by father against mother, which was dismissed.
Mother filed criminal assault charges against father that she
later recanted. Additionally, father obtained a warrant
against mother for violating the protective order. That
charge was dismissed as well.
various pendente lite hearings, on August 24, 2018,
the court heard the issues of the grounds for divorce,
custody, and visitation. The court subsequently issued a
written opinion that granted father a divorce on the ground
of cruelty and determined custody and visitation after
considering the factors enumerated in Code § 20-124.3.
opinion, the court found that both parties enjoyed a close
relationship with A.A., and although the parent-child bond
was equally strong for father and mother, each parent had
deficits. The court had concerns that mother was "highly
erratic" and verbally and physically abusive toward
father. The court found that father "offers a more
stable living situation than [mother]" and
"provided certainty and stability to the child during
the parties' separation." However, the court
described father as "calculating" and found that he
"pushes [mother's] buttons, then decries her erratic
response." It determined that father "has clearly
cut [mother] out of his life" and is "attempting to
strategically take [her] out of [A.A.'s] life as
well." The court concluded, however, that mother's
erratic and abusive behavior toward father was "so
extreme that the stability [father] provides outweighs his
negatives." Accordingly, the court granted father
primary physical custody and established a visitation
schedule for mother.
court awarded the parties joint legal custody. It
specifically referenced the protective order in its letter
opinion and found that father "uses the protective order
as part of an offensive stratagem. It has become a sword in
the custody matter instead of a shield." Although the
court found that "[b]oth parents are unable to cooperate
in resolving disputes," it also noted their
"red-hot hatred has cooled to a slightly lower-grade,
weary hatred" and expressed hope that they may be able
to "move on." The court directed the parties to
communicate concerning the child "SUBJECT TO THE
PROTECTIVE ORDER" with "[n]o telephone calls,
except in emergency situations, or by written
agreement," and advised counsel to include a provision
in the divorce decree addressing third-party exchanges of the
child. Accordingly, the decree provided for exchanges either
at A.A.'s daycare or Family Community Education offices.
The decree also reiterated that all communication between the
parties was subject to the protective order.
subsequent hearing on mother's motion for attorneys'
fees and father's motion to reconsider, the court ...