Bucci & Dix

Federal lawsuit filed by husband backfires in custody case

The Virginia Court of Appeals recently affirmed a trial court's reassessment of child custody rights following a divorce settlement.  In Serdah v. Serdah, husband and wife separated and entered into a settlement agreement.  They agreed to joint legal custody of their only son, with primary physical custody to wife.  The parties also agreed that wife would have tie-breaking power in the event of a disagreement between them.  Nearly two years later, presumably due to disagreements between the parties, wife filed a motion to amend custody from joint legal custody to sole legal custody in Juvenile & Domestic Relations Court.  In response, the husband filed a lawsuit in federal court, alleging that wife's increasing control over their son violated his Fourteenth Amendment liberty interests to the companionship, care, custody, and control of his son.  The wife lost in JDR Court and appealed to the local trial court, where she argued that the husband's separate federal lawsuit evidenced his inability to deal with her in child-related matters. 

The trial court agreed and admitted the lawsuit into evidence, holding that the husband's allegations in the federal suit helped determine the best interests of the child pursuant to the Virginia's child custody laws.  The Court of Appeals affirmed the trial court, holding that because the husband's federal lawsuit tended to prove a fact in issue (the husbands willingness and ability to deal with the wife), it was properly admitted into evidence and considered by the court.