Terrye L. Richter and Rudy Richter v. Diana Nichole Manning, n/k/a Diana Nichole Perry ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, McCullough and Senior Judge Clements
UNPUBLISHED
Argued at Alexandria, Virginia
TERRYE L. RICHTER AND
RUDY RICHTER
MEMORANDUM OPINION * BY
v. Record No. 1166-12-4 JUDGE RANDOLPH A. BEALES
MAY 7, 2013
DIANA NICHOLE MANNING, N/K/A
DIANA NICHOLE PERRY
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Craig D. Johnston, Judge
William L. Schmidt (Brook T. Rolka; William L. Schmidt &
Associates, P.C., on brief), for appellants.
No brief or argument for appellee.
Terrye Richter and Rudy Richter (collectively, appellants) filed a petition for court-ordered
visitation with their paternal grandson, P.B., after Diana Nicole Perry (mother) forbade any further
contact between appellants and P.B.1 On appeal from the circuit court’s denial of appellants’
visitation petition, appellants raise two assignments of error on appeal alleging that the circuit court
erred by (1) finding that P.B. would not suffer actual harm if his paternal grandparents were denied
visitation, and by (2) denying appellants’ pre-trial discovery request for a Rule 4:10 psychological
examination of P.B. For the following reasons, we affirm the circuit court’s judgment in this case.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
We refer to the minor child only by his initials in an attempt to better protect his
privacy.
I. BACKGROUND
Applying settled principles of appellate review, we view the evidence in the light most
favorable to mother (since she was the prevailing party in this circuit court), while also “granting
[her] the benefit of any reasonable inferences.” Congdon v. Congdon, 40 Va. App. 255, 258, 578
S.E.2d 833, 834 (2003). The record on appeal here establishes that P.B. was born to mother and to
Kyle Burlison (father) on June 25, 2007. Mother and father, who never married, had joint custody
of the child. Father died in an automobile accident on July 1, 2009, when P.B. was barely two years
old. Although mother and P.B. lived in appellants’ home from June 12, 2010 until January 27,
2011, mother decided that P.B. would have no further contact with appellants (i.e., P.B.’s paternal
grandparents) very shortly after they moved out of appellants’ home. It is undisputed from the
record on appeal that mother is a capable and fit parent.
On March 15, 2011, Mrs. Richter filed a petition for court-ordered visitation of P.B. in the
juvenile and domestic relations district court (JDR court). In her petition, Mrs. Richter asserted that
mother’s decision to forbid contact between P.B. and Mrs. Richter was “inimical to [P.B.’s]
welfare” and would cause “actual harm” to P.B. In support of this assertion, Mrs. Richter argued
that mother had severed not only the bond between P.B. and his paternal grandmother – but had also
severed P.B.’s closest link to his deceased father.2 Mr. Richter, who is actually P.B.’s paternal
step-grandfather, subsequently joined the litigation as a co-petitioner without objection from
mother. The JDR court denied relief to appellants on September 16, 2011, and appellants appealed
to the circuit court for a trial de novo.
2
Mrs. Richter sought, inter alia, the following relief in her petition in the JDR court:
(1) visitation with P.B. “every other weekend from Friday at 4:00 PM until Monday at 10:00 AM”;
(2) authority to travel with P.B. “to Arkansas at least one time per year to visit with paternal family
members”; (3) “visitation with P.B. “July 13 and July 14 of every year and alternate all holidays of
each year”; and (4) visitation with P.B. “during the summer for at least four (4) weeks.” According
to the record on appeal, July 14 was father’s birthday.
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Appellants’ Rule 4:10 Motion for a Psychological Examination of P.B.
On May 26, 2012, the circuit court held a pre-trial hearing on appellants’ motion pursuant to
Rule 4:10 to have P.B. examined by Dr. Robert Marvin, a licensed clinical psychologist with an
expertise in the field of attachment theory. Appellants’ counsel proffered an explanation of how
Dr. Marvin would conduct the psychological examination of P.B.3 and also proffered that P.B. had a
very close relationship with appellants before mother forbade any further contact between P.B. and
appellants.
During the hearing, the circuit court expressed concern over whether the psychological
examination would be in the young child’s best interests, noting that P.B. would be subjected to
“psychological poking and prodding” during the examination conducted by Dr. Marvin. The circuit
court asked appellants’ counsel whether there were any alternatives to a Rule 4:10 examination.
Appellants’ counsel replied that Dr. Marvin could be admitted as an expert witness in attachment
theory and “testify in general about attachment and the things that the court should be looking for in
that regard,” although appellants’ counsel maintained that Dr. Marvin could not fully testify about
P.B.’s circumstances specifically if he did not conduct the requested Rule 4:10 examination.
Appellants’ counsel indicated that, “without the ability to have this examination conducted, there is
no way to be able to prove any actual harm to [P.B.] as a result of the non-contact.” (Emphasis
added).
3
Appellants’ counsel proffered that Dr. Marvin, using “a one-way window,” would
observe P.B. and Mrs. Richter interact for about twenty to thirty minutes, then would observe
P.B. and a complete stranger interact for about ten minutes, and then would observe P.B. and
Mrs. Richter interact again. The same process would be repeated with Mr. Richter. Dr. Marvin
would then engage in “interactive play” with P.B. using toys – while also “lay[ing] out the basic
theme” of a story “about family and different things that happen with respect to families” and
letting P.B. “tell [Dr. Marvin] what happens next” in the story. Dr. Marvin would then review
the videotape of all of these interactions and “determine what if any harm may have come to
[P.B.] as a result of, or what potential harm there is as a result of not having the relationship with
[appellants].”
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In a bench ruling, the circuit court denied appellants’ motion for a Rule 4:10 psychological
examination of P.B. The circuit court noted the proffer from appellants’ counsel that P.B. had not
seen appellants in over a year. The circuit court then found that the Rule 4:10 motion was
essentially a request “that we let this Dr. Marvin experiment on this child and figure out whether
he’s got an attachment to his grandparents” – and also noted that P.B. was only four years old at the
time of the hearing. The circuit court then explained:
I agree with the mother’s counsel that’s an undertaking that’s
fraught with peril for the boy. If we let him see his grandparents for
the first time in a year, and then have a hearing to decide whether
he’s never going to see them again, and the very -- putting him
through that experience where he gets to see his grandparents for
twenty minutes and then he doesn’t get to see them again until we
have a trial and then he may never get to see [them] again, that in
itself is introducing something that I don’t think is appropriate in this
child’s life. And while [appellants’ counsel] may say it would be
difficult for him to present evidence in other ways as to whether
some attachment has occurred, [Dr. Marvin is] certainly capable of
testifying with respect to attachments that are fixed by what age and
what factors the court should look for in determining whether that
attachment still exists.
There’s got to be some other way to develop that evidence to assist
the Court in determining attachment and its [e]ffects without
subjecting this boy to an experiment.
(Emphasis added). Furthermore, while the circuit court at the pre-trial hearing denied appellants’
motion for a Rule 4:10 examination, it did permit appellants to issue a subpoena duces tecum
requesting records from P.B.’s pediatrician and preschool.
Trial Evidence and Findings of the Circuit Court
During a two-day trial, appellants and mother presented evidence concerning P.B.’s
relationship with his paternal grandparents and the circumstances under which mother forbade
contact between appellants and the child. It was undisputed that appellants had significant contact
with P.B. both before and after father’s death. When father enrolled at the University of Tennessee,
appellants frequently drove P.B. to visit father there. While mother and P.B. continued to live with
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mother’s parents for about eleven months following father’s death, appellants maintained frequent
contact with P.B. With mother’s permission, Mrs. Richter even took P.B. alone on an extended trip
to visit out-of-state relatives.
Mother and P.B. began residing at appellants’ residence on June 12, 2010. At trial, mother
acknowledged that appellants had a loving relationship with P.B. Mother also acknowledged that
appellants (particularly Mrs. Richter) “did a good amount” of P.B.’s caretaking when mother and
P.B. lived at appellants’ home – especially when mother was at work or attending classes – but
mother did not concede that Mrs. Richter was ever his primary caretaker. Mother and P.B. moved
out of appellants’ home on the night of January 27, 2011. Mother testified that she decided to leave
appellants’ home after ending a romantic relationship with one of Mrs. Richter’s relatives, who was
also residing at appellants’ home at the time. Mother testified that continuing a relationship with
this person was not in P.B.’s best interests.
According to the record on appeal, appellants saw P.B. only once more after he and mother
moved out of appellants’ home – during a relatively brief visit at a local McDonald’s restaurant on
January 30, 2011. At trial, mother denied Mrs. Richter’s allegation that mother had instructed P.B.
not to speak with appellants at the McDonald’s.
On February 2, 2011, Mrs. Richter and mother apparently had a dispute concerning
(1) some items belonging to father that had great sentimental value to Mrs. Richter and (2) a key to
appellants’ home. Although the details of the dispute were heavily disputed at trial, the circuit court
accepted mother’s version of events. According to mother’s testimony, as she was leaving
appellants’ home with some belongings, Mrs. Richter became confrontational and proceeded to
follow mother in her car. Mother testified that, as Mrs. Richter followed her, Mrs. Richter allegedly
tried to run her “off the road,” prompting mother to call the police. Mother further testified that
she sent Mrs. Richter an email within a week of the February 2, 2011 incident telling
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Mrs. Richter that appellants were not to see P.B. any longer. The circuit court specifically found
that mother’s reason for denying appellants any further access to P.B. “really related to what
happened . . . on February 2nd.”
Mother testified that P.B. mentioned appellants only once thereafter. Mother testified
that, about a month after mother and P.B. moved out of appellants’ home, P.B. noted that a toy
airplane on display at a Target store looked like one that he kept at appellants’ home. Mother
testified that P.B. did not ask to go back to appellants’ house (but instead only wanted that toy),
that he did not ask to speak to appellants on the telephone, and that she did not believe that
moving out of appellants’ home had a significant effect on P.B.
At the time of trial, P.B. was attending preschool. Mother testified, without dispute, that
she frequently visits P.B. at preschool, that she observes him interacting normally with the
children there, that P.B. is not defiant to authority, and that she has no reason to believe – from
her conversations with P.B.’s preschool teachers – that he has difficulty forming friendships.
Mother described P.B. as well-behaved, testified that he shows normal emotions, and said that he
is regarded by others as “a very lovely and friendly child.” Mother testified that P.B. asks about
father sometimes (usually if P.B. sees something orange, which reminds him of the University of
Tennessee, where father went to college) and that P.B. has pictures of his father in his room.
Mother testified that she wants P.B. to feel free to ask questions about father’s life. Mother
testified that she would readily take P.B. to a child counselor if she believed that he needed
counseling.
In addition, Dr. Marvin testified during appellants’ case-in-chief as an expert “in the field
of psychology and particularly as it relates to families and the field of attachment.” Based on his
expertise, Dr. Marvin testified that children form attachments to people who are important to
them very early in their lives. He explained that children can be at risk for behavioral problems
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caused by the severing of relationships to those persons to whom they are attached. Dr. Marvin
described some of those harmful effects as being withdrawn, being oppositional, doing badly in
school, and not interacting appropriately with peers. Dr. Marvin testified that he reviewed some
materials provided by appellants. He concluded that P.B. was primarily attached to mother and
that P.B. was secondarily attached to father, prior to father’s death. However, Dr. Marvin also
testified that P.B. appeared to be very attached to his paternal grandparents, especially
Mrs. Richter.
During its bench ruling at the conclusion of the trial, the circuit court accepted Dr. Marvin’s
testimony that the severing of an attachment could potentially result in harm to a child. However,
the circuit court found that P.B. had not shown any actual or foreseeable signs of harm – such as
being withdrawn, being oppositional, doing badly in school, and not getting along with his peers.
In addition, the circuit court found that mother was “[b]eing alert to [P.B.] missing his father,
putting his picture in his room, helping him deal with it, helping him adjust as he gets older to
the lack of his father, keeping his father in his life while helping him deal with the loss.”
Furthermore, while the circuit court expressed empathy toward Mrs. Richter for the tragedy she
has experienced by her son’s death at such a young age, the circuit court also found that
Mrs. Richter “will have difficulty helping P.B.” process the loss of his father at this time.
Finally, noting Dr. Marvin’s testimony that “forced visitation where there are hard feelings is not
good for a child,” the circuit court concluded that court-ordered visitation was not appropriate in
this case.
II. ANALYSIS
A. THE ACTUAL HARM STANDARD UNDER WILLIAMS
Throughout the course of this very sad and unfortunate case – in which mother has
forbidden contact between her young child and his deceased father’s side of the family – appellants
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have acknowledged that the decisions of the Supreme Court of Virginia and of the Supreme Court
of the United States guide the analysis here and set a very high burden for prevailing on their
petition for court-ordered visitation with P.B. Those decisions hold that “[t]he relationship between
a parent and child is a constitutionally protected liberty interest under the Due Process Clause of the
Fourteenth Amendment.” L.F. v. Breit, 285 Va. 163, 182, 736 S.E.2d 711, 721 (2013) (citing
Troxel v. Granville, 530 U.S. 57, 65 (2000)); see also Williams v. Williams, 256 Va. 19, 21-22, 501
S.E.2d 417, 418 (1998). Thus, as appellants’ counsel recognized at oral argument before this Court,
there is a “fundamental right of parents to make decisions concerning the care, custody, and control
of their children.” Troxel, 530 U.S. at 66.
Review of the circuit court’s denial of appellants’ petition for court-ordered visitation of
P.B. is controlled by the Supreme Court of Virginia’s decision in Williams, which held:
“For the constitutional requirement to be satisfied, before visitation
can be ordered over the objection of the child’s parents, a court must
find an actual harm to the child’s health or welfare without such
visitation.” A court reaches consideration of the “best interests” [of
the child] standard in determining visitation only after it finds harm if
visitation is not ordered.
Williams, 256 Va. at 22, 501 S.E.2d at 418 (quoting Williams v. Williams, 24 Va. App. 778,
784-85, 485 S.E.2d 651, 654 (1997)). Because the Supreme Court held in Williams that the actual
harm standard must be satisfied before the statutory factors relating to a determination of the best
interests of the child are addressed, appellate courts need to “tread lightly on this subject
recognizing the magnitude of the parental interests at stake and the limited authority of the courts to
upend those ancient, constitutionally protected, parental interests.” Damon v. York, 54 Va. App.
544, 552, 680 S.E.2d 354, 358 (2009); see Griffin v. Griffin, 41 Va. App. 77, 84, 581 S.E.2d 899,
902 (2003) (“[T]he actual-harm test cannot be satisfied by a showing that it would be better,
desirable, or beneficial for a child to have visitation with a non-parent.” (internal quotation marks
and citation omitted)).
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In this case, the circuit court heard and considered appellants’ evidence and mother’s
evidence during a two-day trial. At the conclusion of the evidence and following argument from the
parties, the circuit court issued a thorough bench ruling, which spans approximately twenty pages of
the joint appendix. Among its findings, the circuit court found no indications that P.B. had suffered
actual harm and found no basis for concluding that he would suffer actual harm in the foreseeable
future. Thus, applying Williams, the circuit court found that appellants failed to satisfy their burden.
To the extent that appellants contend in their first assignment of error on appeal that the
circuit court’s decision was contrary to the evidence that was admitted at trial, 4 “the judgment of the
circuit court shall not be set aside unless it appears from the evidence that such judgment is plainly
wrong or without evidence to support it.” Code § 8.01-680. Viewing the trial evidence in the light
most favorable to mother (as we must since mother was the prevailing party below), we conclude
that the circuit court’s finding that the evidence failed to establish actual harm under Williams was
supported by credible evidence. Id.
B. DENIAL OF PRE-TRIAL RULE 4:10 MOTION
During oral argument before this Court, appellants’ counsel clarified that appellants rely
primarily on their second assignment of error on appeal, in which appellants allege that the circuit
court committed reversible error when it denied their motion for a psychological examination of
P.B. under Rule 4:10. Specifically, appellants’ counsel contended during oral argument, “My point
to the Court here is that when the [circuit] court denied our request under Rule 4:10 . . . for the
examination by the psychologist, that [ruling] essentially became outcome determinative of this
4
In support of their first assignment of error, appellants primarily rely upon a New Jersey
Supreme Court opinion, Moriarty v. Bradt, 827 A.2d 203 (N.J. 2003). In Moriarty (as here), the
lone surviving parent of the child forbade the grandparents from having any further contact with
the child. However, the trial judge in Moriarty found in the grandparents’ favor – and that
conclusion in Moriarty was supported by extensive factual findings from the trial judge in that
case. Here, the circuit court found in mother’s favor. Thus, the record on appeal in this case
does not establish the facts and circumstances that were so compelling to the trial judge in
Moriarty.
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case.” (Emphasis added). In other words, appellants’ counsel asserted that the circuit court’s
pre-trial decision to deny appellants’ Rule 4:10 motion for a psychological examination of P.B. by
their expert, Dr. Marvin, essentially thwarted appellants’ attempt to satisfy the Williams actual harm
standard at trial.
Rule 4:10 states, in pertinent part:
When the mental or physical condition (including the blood group)
of a party, or of a person in the custody or under the legal control of a
party, is in controversy, the court in which the action is pending,
upon motion of an adverse party, may order the party to submit to a
physical or mental examination by one or more health care providers,
as defined in § 8.01-581.1, employed by the moving party or to
produce for examination the person in the party's custody or legal
control. The order may be made only on motion for good cause
shown and upon notice to the person to be examined and to all
parties, shall specify the time, place, manner, conditions, and scope
of the examination and the person or persons by whom it is to be
made, and shall fix the time for filing the report and furnishing the
copies.
Rule 4:10(a) (emphasis added). 5
“Generally, the granting or denying of discovery is a matter within the discretion of the trial
court and will not be reversed on appeal unless ‘the action taken was improvident and affected
substantial rights.’” O’Brian v. Langley Sch., 256 Va. 547, 552, 507 S.E.2d 363, 366 (1998)
(quoting Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d 751, 755 (1970)); see Nizan v. Wells
Fargo Bank Minn. N.A., 274 Va. 481, 500-01, 650 S.E.2d 497, 507 (2007). Furthermore, an
5
Code § 20-124.2(D) also states, “In any case in which custody or visitation of minor
children is at issue, whether in a circuit or district court, the court may order an independent
mental health or psychological evaluation to assist the court in its determination of the best
interests of the child.” However, while appellants relied upon Code § 20-124.2(D) (as well as
Rule 4:10) in the circuit court, any argument that the circuit court erred under Code
§ 20-124.2(D) is waived for purposes of appeal because appellants’ assignments of error do not
allege any error under that statute. See Fox v. Fox, 61 Va. App. 185, 202, 734 S.E.2d 662, 670
(2012) (“Rule 5A:20(c) requires us to hold that this issue is waived because it is not part of
appellant’s assignment of error.”). Here, appellants’ second assignment of error only alleges that
the trial court “erred when it denied Appellants’ request for a Rule 4:10 examination of the
child.” (Emphasis added). Accordingly, appellate review is confined to the trial court’s
discretionary decision under Rule 4:10.
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examination order may only be granted “for good cause shown,” according to Rule 4:10(a). See
Wright v. Wright, 61 Va. App. 432, 466, 737 S.E.2d 519, 536 (2013) (“‘A good cause
determination invests a trial court with discretion.’” (quoting AME Fin. Corp. v. Kiritsis, 281 Va.
384, 392, 707 S.E.2d 820, 824 (2011))). Appellants had the burden as “the moving party to show a
right to the relief sought.” Goodhand v. Kildoo, 37 Va. App. 591, 599, 560 S.E.2d 463, 466 (2002).
Relying on the decision in Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va.
346, 717 S.E.2d 134 (2011), appellants argue that the circuit court abused its discretion here because
“an irrelevant or improper factor [was] considered and given significant weight” during the bench
ruling denying appellants’ Rule 4:10 motion. Id. at 352, 717 S.E.2d at 137 (citation omitted).
Specifically, appellants challenge the circuit court’s finding that any Rule 4:10 examination that
involves contact with appellants is “an undertaking that’s fraught with peril for the boy.” During
oral argument before this Court, appellants’ counsel asserted that this finding was “pure
speculation” and was unsupported by any evidence presented at the Rule 4:10 hearing. We
disagree.
The Supreme Court of Virginia explained in Landrum that the phrase “abuse of discretion”
means that the circuit court “has a range of choice, and that its decision will not be disturbed as long
as it stays within that range and is not influenced by any mistake of law.” Id. (internal quotation
marks and citation omitted) (emphasis added). Similarly, this Court has explained that the
“bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that
the judge closest to the contest is the judge best able to discern where the equities lie.” Hamad v.
Hamad, __ Va. App. __, __, 739 S.E.2d 232, __ (2013). Under settled Virginia case law, “‘[o]nly
when reasonable jurists could not differ can we say an abuse of discretion has occurred.’” Grattan
v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v.
Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)).
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At the pre-trial hearing in this case, the circuit court carefully considered appellants’ request
for the circuit court to order a Rule 4:10 examination of P.B. by Dr. Marvin.6 The circuit court
acknowledged appellants’ belief that a Rule 4:10 examination could potentially produce evidence
relevant to a determination of actual harm to P.B. However, the circuit court also explained that it
needed to weigh P.B.’s best interests when it considered appellants’ discovery request under Rule
4:10 – and that it needed to be convinced that the benefits of the examination “outweigh the burdens
. . . that are implicit” in conducting a psychological examination of this young child. The circuit
court observed that “any kind of [R]ule 4:10 examination is by [its] very nature intrusive” on the
person being examined. The circuit court then observed that P.B. in particular – given his young
age – would be subjected to a significant degree of “psychological poking and prodding” during the
examination conducted by Dr. Marvin. Appellants’ counsel did not challenge either of these
observations. The circuit court also considered evidence, through the proffer of appellants’ counsel,
that there was “an incredible amount of contact” between P.B. and appellants when mother and P.B.
lived at appellants’ home.
As a general matter, when trial courts address matters concerning custody, visitation, and
other child care issues, they are instructed to consider the best interests of the child. See Farley v.
Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). Thus, the circuit court here expressly
considered P.B.’s best interests when it addressed appellants’ motion for a Rule 4:10 psychological
examination of the young child. Appellants’ counsel did not object to this analysis. The circuit
court then concluded that subjecting P.B. to Dr. Marvin’s examination procedure, re-initiating brief
contact between P.B. and appellants for the limited purpose of the Rule 4:10 examination, and then
6
At this hearing, the circuit court rejected an assertion by mother’s counsel that appellants’
contact with P.B. during the examination would be a per se violation of the Williams actual harm
standard – given that mother objected to the examination request. The circuit court found that
appellants’ contact with P.B. during the type of controlled examination described in the proffer by
appellants’ counsel would not constitute impermissible visitation between appellants and P.B.
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potentially ordering no further contact between P.B. and appellants at a later hearing was simply not
in P.B.’s best interests. This conclusion was not unsupported, as appellants claim on appeal – but
was, instead, amply supported by the circumstances described above.
While another trial judge perhaps might have ordered appellants’ requested Rule 4:10
examination after considering the same circumstances, that is not the test for an abuse of discretion.
See Grattan, 278 Va. at 620, 685 S.E.2d at 644 (“Only when reasonable jurists could not differ can
we say an abuse of discretion has occurred.” (internal quotation marks and citation omitted)
(emphasis added)). In its bench ruling explaining why it denied appellants’ Rule 4:10 motion, the
circuit court remained within the “range of choice” described by the Supreme Court in Landrum for
matters that are within a circuit court’s discretion. See Landrum, 282 Va. at 352, 717 S.E.2d at 137.
In addition, viewing the circumstances in this record in the light most favorable to mother
(as we must since she is the prevailing party below), the circuit court did not err in finding that
appellants failed to satisfy their burden of establishing “good cause” for their requested Rule 4:10
psychological examination of P.B. by Dr. Marvin. See Rule 4:10(a). While appellants assert that
the Rule 4:10 examination was necessary for determining whether P.B. has suffered actual harm
under Williams, we disagree with appellants’ assertion. “It is not the purpose of [Rule 4:10] to
create a final arbiter” of evidentiary disputes because that function must remain with the factfinder.
Virginia Linen Service, Inc. v. Allen, 198 Va. 700, 703, 96 S.E.2d 86, 88 (1957).
Here, the circuit court expressly stated that appellants could potentially prove actual harm
under the Williams standard through other means than a Rule 4:10 psychological examination of
this young child. Dr. Marvin testified at trial as an expert witness in attachment theory, and he
described several factors that would indicate that the severing of the relationship – between a child
and a figure to whom that child is attached – has had a harmful effect on the child. Dr. Marvin also
testified that, in his expert opinion, P.B. was indeed attached to appellants – particularly to
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Mrs. Richter. The circuit court certainly considered Dr. Marvin’s testimony. Furthermore, the
circuit court permitted appellants to subpoena certain records from P.B.’s pediatrician and preschool
– which were requested to aid the circuit court in determining whether P.B. exhibited any of the risk
factors noted by Dr. Marvin that could result from the severing of a relationship with a person to
whom a young child has an attachment. However, after considering all of the evidence admitted at
trial, the circuit court found that the evidence failed to prove that P.B. had suffered (or foreseeably
would suffer) actual harm -- which was appellants’ burden of proof under the Supreme Court’s
decision in Williams.
The circuit court’s ultimate finding that appellants failed to satisfy their evidentiary burden
under Williams based on the evidence at trial simply does not lead to the conclusion that the circuit
court committed a pre-trial abuse of discretion when it denied appellants’ motion for a Rule 4:10
psychological examination of P.B. A party’s mere assertion that a discovery tool “is necessary for a
movant to investigate fully and prepare his case is clearly insufficient as a statement of good cause.”
Rakes, 210 Va. at 546, 172 S.E.2d at 755. Based on the circumstances in the record on appeal in
this particular case, the circuit court here did not err in finding that appellants failed to establish
good cause for the examination, as was required under the plain language of Rule 4:10(a).
Accordingly, we hold that the circuit court did not abuse its discretion when it denied appellants’
motion to order the Rule 4:10 examination of P.B.
III. CONCLUSION
The Supreme Court’s decision in Williams holds that petitioners for court-ordered visitation
of a child over the objection of fit parents (or, in this case, a fit parent) must first establish that the
child has suffered actual harm. Viewing the evidence in the light most favorable to mother (as we
must since mother was the prevailing party below), the evidence at trial did not satisfy that initial
burden in this case. Furthermore, the circuit court did not abuse its discretion prior to trial when it
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found that ordering a Rule 4:10 psychological examination of P.B. was not in the young child’s best
interests and when it found that appellants’ Rule 4:10 motion was not supported by good cause.
Accordingly, for the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
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