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McGriff v. McGriff9/21/2004
2004 Opinion No. 107
Expedited review of a magistrate judge's custody determination is: Affirmed in part, reversed in part and remanded.
Theron McGriff ("Theron" or"Father") appeals the magistrate judge's order granting Shawn McGriff's ("Shawn" or"Mother") motion to modify custody of their two children and denying his motion for the same. Theron alleges that the magistrate lacked jurisdiction to modify custody when he had already dismissed Shawn's petition, that the court erred when it found substantial and material changes in circumstances meriting a change in the custody arrangement, and that the court erred in basing its order modifying custody on Theron's sexual orientation. Theron also appeals the magistrate's subsequent decision granting Shawn attorney fees on appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Theron and Shawn were divorced in February 1997, after approximately seven years of marriage. Two daughters were born as the issue of the marriage and the divorce decree provided that both parents would share legal and physical custody of children, one now thirteen and the other now nine. This decree incorporated the stipulation that a parenting plan would direct that the children reside with Shawn from Sunday evenings through Wednesday mornings and with Theron from Wednesday evenings through Sunday mornings, with the parents alternating holidays.
In December 2000, Shawn filed a petition to modify the decree of divorce , alleging that substantial and material changes had occurred in the circumstances of the parties since the entry of the decree and that the modification was in the best interests of the children. Specifically, Shawn alleged that "...events have occurred with respect to [Theron's] intimate relationship with a person of the same sex which have completely changed the circumstances, such that it is no longer in the best interests of the girls that they spend one-half of the overnights each week with [Theron]." Shawn alleged as further substantial and material changes that Theron "has failed to deal with his homosexuality in a responsible and emotionally stable manner, [which] requires the parenting plan to be modified...," and that the children's young age and unfamiliarity with homosexuality also supported a modification. As part of her petition Shawn requested primary physical custody, granting Theron reasonable visitation consisting of alternating weekends and holidays. Shawn also requested that Theron "be required to seek professional assistance in dealing with his homosexuality and the manner in which his homosexuality is explained to the minor children."
In June 2001, the magistrate judge appointed Dr. Mark Corgiat to conduct a parenting evaluation of Theron and Shawn. Dr. Corgiat found that both Theron and Shawn were "good parents who have cared well for the children" and that the children did not want any change in the custody arrangements. Additionally, he found that both parents have "been involved in inappropriate expressions of anger toward one another in front of the children," and that they both have "tendencies towards violation of appropriate parental boundaries in expressing their difficulties with one another." Dr. Corgiat recommended that the custody arrangement remain unchanged but, because he found Shawn's concerns regarding how Theron addressed his sexual orientation to be valid, he recommended that the two parties obtain the help of a professional "who can assist them in presenting this information collaboratively to their children." He also recommended counseling for both parents regarding appropriate parent-child boundaries, finding that " he parental alienation that has evolved through mismanagem
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