Roberts v. Roberts

586 S.E.2d 290 (2003)

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Nature of the Case

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Facts

H and W were divorced by a final decree entered June 24, 1998. Two children were born of the marriage, N., and H1, aged twelve and ten years, respectively, at the time of the subject trial court hearing. W was awarded physical custody of the children with liberal visitation granted to H. After H moved to North Carolina, the children continued to visit him at the residence he shared with his new wife and her children from a previous marriage. The current action began on December 3, 2001, when mother filed a 'Motion to Suspend or Modify Visitation,' alleging that continued visitation between H and children was not in the children's best interests. The children began complaining of physical ailments immediately prior to their leaving for visitation. They complained that H threatened them and inflicted corporal punishment. N. testified he and his sister disliked visiting H because they were required to spend much time reading the Bible and doing chores. H did not allow them to watch television and allowed them no 'free time.' H told the children that mother was a fornicator and adulterer and that she would go to hell. When the children obeyed W instead of H, he told them if they died at that time they would go to hell. When they were with H and W called, H told them 'the devil' was calling. N. testified that he no longer mentions his mother in H's presence, because when he does, H tells him not to call her 'Mom' because she is a sinner and that he should call H's present wife 'Mom' because she is 'godly.' N. testified that he and his sister lived in fear of being punished by H and that H would threaten punishment without explaining what the punishment would be. N. and H1. feigned illness or professed to be tired, crying and begging not to go. After W unilaterally halted visitation in August 2001, the children's dispositions and attitudes improved noticeably. They ceased feigning illnesses and began looking forward to weekends. H1., in particular, began doing better in school. H spanked the children because God had commanded it. H and his present wife insisted the children call him their 'godly father.' H treated his present wife's children in the same manner. H told the McAllister's children that their father had deserted them, that he was not 'righteous,' and that they were not supposed to live with 'nonbelievers' such as the McAllisters and because their natural father was not righteous, he (H) was now their real father. H told the McAllister children that mother was a 'wicked woman.' Dr. Leigh Hagan, a clinical psychologist, testified the children were 'distressed' by H's proselytizing and by his condemnation of W. H1 was particularly at risk of psychological damage due to H's telling her that women should not strive to accomplish what men accomplish and that women should be subservient to men. The court concluded that even the most well-adjusted child in the world would have serious problems trying to reconcile the divergent views put forward by H and W. When those divergent views are added to the upheaval already existing in these particular children's lives, the children's best interests are obviously not being served. The trial court awarded W sole legal and physical custody of the children, terminated H's in-person visitation, and limited H's contact with the children to scheduled, telephonic visits. H appealed. H contends in part that the trial court failed to 'properly take into account' his right to free exercise of religion and that the trial court's decision violated his religious rights as guaranteed by the United States and Virginia Constitutions.