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  • Norman Thomas

International Custody Litigation in Virginia’s Courts: A Case Study

The Court of Appeals of Virginia recently issued an interesting panel decision in Coe v. Coe, 66 Va. App. 457, 788 S.E. 2d 261 (2016). The appeal resolved an international custody dispute arising in the Circuit Court of Arlington County ("the trial court"). The decision explored provisions of the Hague Convention on Civil Aspects of International Child Abduction ("the Convention"), the International Child Abduction Remedies Act ("ICARA") [codified at 22 U.S.C. §9001, et seq.], as well as principles of both federal and state law. The Court also delved into rules respecting the finality of judgments (Rule 1:1), preservation of error for appellate review (Rule 5A:18), and the argument and authorities requirement of Rule 5A:20(e). Judge Robert J. Humphreys authored the unanimous decision, joined by Judges Mary Grace O’Brien and Mary B. Malveaux.

The appellant, Kevin Coe ("father"), and appellee, Seon Hwa Coe ("mother"), married in 2004, and had a daughter, "J.C.," in 2007. Father deployed from their Arizona home in 2011 to work in Afghanistan as a civilian contractor. Mother, possessing dual-citizenship in the U.S. and South Korea ("Korea"), moved with J.C. to Korea during that deployment. In 2012, father filed for and obtained a divorce from mother in the Arizona court system. Those proceedings did not adjudicate child custody matters.

In 2014, father, now residing in Virginia, purchased tickets for mother and J.C. to visit him. The Court’s opinion recounts details of that ill-fated sojourn. Suffice it here to say that early in the visit, father secretly took possession of J.C.'s passports (both U.S. and Korean), detained the child without mother’s consent, and refused to either return the passports or allow mother to see J.C. Father and his girlfriend took J.C. to live at their apartment, and alleged that J.C. "expressed that [she] had knowledge of oral sex and was being abused in Korea," possibly by an uncle. [Clarification added]

Mother filed an emergency petition in the Arlington County Juvenile and Domestic Relations District Court ("J&DR"). Pursuant to the Convention, she sought to return J.C. to Korea for custody proceedings in the "country of [J.C.’s] habitual residence." [Clarification added] The J&DR court denied the petition, finding it premature, as the planned six-week visit to the U.S. "had not yet run." The J&DR court likewise denied father’s competing emergency petition, ruling that the court lacked jurisdiction. Both parties appealed to the trial court.

The trial court conducted two evidentiary hearings. At the first hearing’s conclusion, the trial court ruled that under the Convention, Korea constituted J.C.’s country of habitual residence. Further, it held that father had "wrongfully removed or retained J.C." within the Convention’s meaning of the term, as implemented by ICARA. The trial court also appointed a psychological forensic expert to investigate whether returning J.C. to Korea would pose a "grave risk" of "exposing her to physical or psychological harm" within the meaning of the Convention’s Article 13(b). Under that provision, a "grave risk" finding would require that J.C. remain in the U.S.

At the second hearing, the expert reported finding no evidence that J.C. suffered abuse in Korea. At the hearing’s conclusion, the trial court reiterated its previous habitual residence ruling. It additionally held that father failed to carry his clear and convincing burden to demonstrate a "a grave risk of exposing J.C." to harm should mother return her to Korea. The trial court granted mother’s petition to restore J.C. to her custody for a return to Korea.

The trial court awarded mother substantial attorneys fees and costs under ICARA’s terms. It added the following handwritten language to its final order:

It further appearing to the court that based upon the evidence presented, there was manipulation, misrepresentation, and fabrication by [father] regarding allegations of sexual abuse, further justifying the decisions herein, including an award of fees and costs. [Clarification added]

The trial court entered its final order on April 27, 2015, after having circulated a draft to counsel for some two-week’s time. Father timely appealed, however, he did not file written objections to the final order until May 29th, thirty-two days after final judgment.

On appeal, father raised several assignments of error. The Court distilled them into five categories:

  1. whether the circuit court erred in finding Korea to be J.C.'s habitual residence;

  2. whether the circuit court erred in finding that father breached mother's right of custody and that his retention of J.C. was therefore "wrongful" within the meaning of the Convention;

  3. whether the circuit court erred in finding that father failed to prove by clear and convincing evidence that J.C. has been abused, sexually or otherwise, while in mother's custody in Korea so that returning J.C. to Korea would pose a grave risk as understood within the meaning of Article 13(b) of the Convention;

  4. whether the circuit court erred in making an award of fees and costs to mother pursuant to [ICARA]; and

  5. whether the circuit court erred in entering a final order without providing father an opportunity to object. [Clarification added]

In discussing the applicable standard of review, the Court applied the federal "clear error" standard to the trial court’s factual determinations. It undertook de novo review of the trial court’s "conclusions regarding principles of domestic, foreign and international law."

The Court ruled that father failed to preserve for appellate review the trial court’s evidentiary finding regarding the Article 13(b) "grave risk" exception. It viewed father’s May 29th stated objections to that ruling vis-à-vis the twenty-one day finality provision of Rule 1:1. It held: "Father did not present the circuit court with an opportunity to intelligently rule on his objections; thus his arguments…were not preserved…under Rule 5A:18."

The Court then turned to father’s assigned error respecting the trial court’s "wrongful removal" finding. It ruled that father had waived appellate review. It noted that father failed "to provide any legal support for his position as required by Rule 5A:20(e)." In addressing this point, the Court observed that "father utilized the ‘throw everything at the wall and hope something sticks' approach to appellate advocacy.'" It noted its previous condemnation of that approach, citing Fadness v. Fadness, 52 Va. App. 833, 850-51, 667 S.E. 2d 857, 866 (2008).

In reviewing the trial court’s "habitual residence" determination, the court stated that "[b]ecause most Convention cases are filed in federal courts, this issue appears to be one of first impression[.]" The Court went on to discuss the foundational principles of ICARA and the Convention’s applicable child custody provisions. Citing federal cases, the Court noted that the Convention "reflects a universal concern about the harm done to children by parental kidnapping and a strong desire among the Contracting States to implement effective deterrent to such behavior." The Convention’s Article 19, absent clear and convincing proof of an exception, "leaves custodial decisions to the court of the country of habitual residence."

Yet, the Convention does not define "habitual residence." The Court then discussed germane federal cases, noting the Fourth Circuit’s conclusion "that 'there is no real distinction between ordinary residence and habitual residence,'" quoting Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001). It also favorably cited Friedrich v. Friedrich, 983 F.2d 1396, 1398 (6th Cir. 1993), for the proposition, "On its face, habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward." The Court went on to distinguish, and reject, father’s "cherry-picks" from the language of other federal precedent. It upheld the trial court’s factual finding that Korea constituted the country of J.C.’s habitual residence.

The Court then considered father’s assigned error alleging that the trial court deprived him of notice and opportunity to object to the final order. It found that "the record does not support this contention." It based its finding on the fact that father’s counsel received the trial court’s "draft order on April 14, 2015, and the circuit court did not enter its final order until April 27, 2015." The Court explained:

This provided father two weeks prior to entry of the final order to make any objections. Additionally, he could have preserved his objections by filing a motion to reconsider in the circuit court within twenty-one days after entry of the final order. However, by the time father filed his motion on May 29, 2015, the circuit court lacked jurisdiction, pursuant to Rule 1:1, because more that twenty-one days had passed since the entry of the final order.

In upholding the trial court's award to mother of attorneys fees and costs, the Court compared the ICARA's applicable language to Virginia law respecting such awards in child custody proceedings. The Court recounted that both ICARA's language, and federal case law interpreting it, "ordinarily required" an award of fees and costs to the prevailing litigant. It noted that the respondent bears "the burden to establish that a fee/expense [award] would be clearly inappropriate," quoting Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004). [Clarification in original]

The Court further cited Whallon in holding that "[a] fee award under the Convention is reviewed for abuse of discretion…An abuse of discretion has been found when a court 'based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.'" Citing and quoting in part, In re Sims, 534 F.3d 117, 132 (2nd Cir. 2008); and see Whallon, 356 F.3d at 140. It then reviewed Virginia's standard, to the effect that an award of attorneys fees and costs "is a matter submitted to the trial court's sound discretion and is reviewable on appeal only for an abuse of discretion." Citing and quoting in part, Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The Court stated that the "key" to a proper award lies in its reasonableness under the circumstances "revealed by the record." Citing and quoting in part, McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).

Then, considering the record, the Court upheld the trial court’s award:

In this case, we find that father failed to meeting his burden to show that a fee award would be clearly inappropriate…In light of all that has taken place, there is nothing unreasonable about the circuit court awarding a fee to mother pursuant to the statute or the amount awarded. Father did nothing to show that the award was clearly inappropriate.

Finally, the court cited an ICARA provision, 22 U.S.C. § 9007(b)(c), to award mother "all of the additional necessary and reasonable expenses incurred by or on behalf of mother in connection with this appeal." The Court then affirmed the trial court, but made a limited, as opposed to general remand of the case "solely for consideration of an award of reasonable appellate attorney's fees and costs consistent with this opinion."

In the course of a career, most Virginia attorneys will not litigate an international custody dispute. Yet, family law practitioners handle them with increasing frequency. The Coe decision therefore likely will serve as forerunner to future Court of Appeals' adjudications under the Convention and ICARA. I learned much from reading the decision, and reviewing the statutes and cases cited by the Court.

Beyond its international custody law impacts, Coe provides Virginia attorneys with a good primer on both trial and appellate procedure. For example, the decision instructs that if a circuit judge sends you a draft final order, you'd best act promptly to review it and respond appropriately on behalf of your client. We know from Coe that the Court will not sympathize with counsel who receive such a draft and fail to act. The circuit judge may wait an appropriate time, here, two weeks, and proceed to enter the final order.

In addition, lest we need reminding, the twenty-one day finality-of-judgments provision of Rule 1:1 remains alive and well. So, too, does the contemporaneous objection rule of Rule 5A:18. Counsel must raise a timely objection, and provide the trial court opportunity to "be informed of the precise points of objection in the minds of counsel so that it may be advised and rule intelligently." Citing and quoting in part, Ross v. Schneider, 181 Va. 931, 941, 27 S.E.2d 154, 158 (1943); see also, Rule 5:25. And more, the Court reads Rule 5A:20(e) to mean what it says. As to each assigned error, a litigant must provide the court with "the argument (including principles of law and authorities) relating to each assignment of error…stated in one place and not scattered through the brief."

Finally, the Court spoke at some length in Coe to reiterate condemnation of the "throw everything at the wall and hope it sticks" approach to appellate litigation. In addition to the Court's above-described holding, it further quoted Fadness to remind counsel of this admonition: "The appellate courts of this Commonwealth 'are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error.'" 52 Va. App. at 851, 667 S.E.2d at 866. These words provide emphatic evidence of the Court's disdain for perceived meritless appellate arguments. Its award to mother of appellate fees and costs certainly underscored its point.

Norman Thomas

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