Garner v Ruckman, Record No. 0344-11-4, is an unpublished relocation case decided by the Virginia Court of Appeals in November, 2011.
Mom, the primary physical custodian, had relocated. Dad moved to transfer custody to himself.
After mom presented her evidence, the trial court granted dad’s motion to strike. The court found the 7-year-old faced no harm in living with dad, and derived no benefit from moving to Pennsylvania. A motion to strike is the jury trial equivalent of a motion for a directed verdict, or the baseball equivalent of a no-hitter.
If it were baseball, one might say there were as many as 18 hits for mom – facts she proved that favored her child living in Pennsylvania rather than Virginia. This was more than adequate to meet her burden of establishing a prima facie case. The Court of Appeals said that the trial court erred in granting the motion to strike, and further erred in applying an “actual harm” instead of a “best interest” standard.
The motion to strike is a drastic remedy. It is surprising the circuit court would have granted it after the mother proved so many facts in support of her case. (For example, dad had been an irregular child support payor, drug abuser, and convict. He lived with a girlfriend and had not consistently addressed the child’s needs.
Some of mom’s evidence pre-dated the parties’ final decree of divorce awarding her primary custody. This blogger questions the admissibility of such evidence in support of a material change in circumstances; as it appears to violate the "law of the case" doctrine. But in any event, there was enough new evidence to support mom’s relocation.
[Virginia Lawyers Weekly ran a front-page story about this decision on December 5, 2011.]