Can I really be convicted of a crime for a Virginia custody order violation?

If you are subject to a Virginia custody order, my recommendation is to follow that order.  If you don’t agree with the order, then work with your family law attorney to change that order – we DO NOT practice family law.  If the court refuses your request, then follow the order until it changes.

If you fail to do so, in addition to being found in violation of the custody order in your family law case, you face criminal exposure.

Violating a custody order can be a crime in Virginia.

Recently, we’ve been seeing more cases of alleged violations of Virginia Code Section 18.2-49.1.  That statute provides:

A. Any person who knowingly, wrongfully and intentionally withholds a child from either of a child’s parents or other legal guardian in a clear and significant violation of a court order respecting the custody or visitation of such child, provided such child is withheld outside of the Commonwealth, is guilty of a Class 6 felony.

B. Any person who knowingly, wrongfully and intentionally engages in conduct that constitutes a clear and significant violation of a court order respecting the custody or visitation of a child is guilty of a Class 3 misdemeanor upon conviction of a first offense. Any person who commits a second violation of this section within 12 months of a first conviction is guilty of a Class 2 misdemeanor, and any person who commits a third violation occurring within 24 months of the first conviction is guilty of a Class 1 misdemeanor.

If you are reading this article, you may be in the thick of a family law case.  Again, we at Abrenio Law do not practice family law.  But from a criminal stand point, this statute can have serious ramifications on your life and family if you’re found guilty. 

What is a “wrongful” violation of a child custody order?

This issue was previously litigated in the case of Boyd v. Comm, 72 Va. App. 274 (2020).  There, mom was given primary custody of the couple’s son.  Dad, who lived in Pennsylvania,  was given visitation the 3rd Sunday of every month from September to June, but he was required to provide mom a week’s notice if he wanted to enjoy that visitation.

One day, the son called dad and claimed that mom spanked him with a switch and threw an item at him. Son also reported this allegation to his school, CPS got involved, and ultimately found the allegation was without merit.  Nevertheless, dad claimed he was scared for his son’s safety and, without notifying mom, the police or CPS, picked up son and took him back to Pennsylvania.

Mom was so worried that she filed a missing person’s report.  When she learned that dad took son, she called him, and he responded that he’d come back to Virginia and “f*** her up.”  Dad ended up keeping the son out of state for fifteen days until mom was able to get an emergency order from the Virginia court requiring dad to return son.

In upholding the trial court’s conclusion that dad’s custody order violation was “wrongful,” the Court of Appeals opined:

[Dad] did not, in fact, contact [mom] even after he returned to Pennsylvania with his son. Although appellant asserts that “the threat of harm that could befall his son left [him] with little choice but to protect his son from further harm by removing him from the situation,” appellant unilaterally chose to take R.B. out of state. Further, appellant did not advise the school, DSS, or the police officer investigating the missing person report of his plan to take R.B. to Pennsylvania.

Once there, he did not seek an emergency hearing granting him custody of R.B. while the child abuse case was investigated. He kept R.B. in Pennsylvania for fifteen days and did not return him until Rose obtained an order from the Pennsylvania court mandating him to bring R.B. to Virginia.

What is a “clear and significant” custody order violation?

Previously, the Chesterfield Circuit Court ruled that “clear and significant” was Unconstitutionally vague to provide potential defendants notice of what constituted a crime. Comm v. Dumon, 58 Va. Cir. 475 (2002)(Chesterfield Cir. Court):

Ultimately, whether determined by police, prosecutors, judges, or juries, someone will be compelled to determine whether or not a violation is “clear and significant.” If this case were to proceed to trial by bench, this Court would need to apply its own subjective opinion as to what is, and what it not, significant. If by jury, the jurors would be left to argue over the same question. Whether by judge or jury, the ultimate determination of the defendant’s fate will be entirely dependent upon a subjective analysis based upon life experiences, biases, personal predilections, and whim rather than pursuant to the express language of a statute. This Court will not allow a defendant’s fate to be thrown to the mercy of individual policy decisions. Instead, the Court will leave policy matters to the legislature.

Nevertheless, this decision was reversed by the Court of Appeals in Commonwealth v. Dumont, No. 1550-02-2, 2002 WL 31415148, at *1–2 (Va. Ct. App. Oct. 28, 2002).

James, I’m still not sure what kind of custody order violation constitutes a crime?!

Honest, we aren’t either. In reality, this statute is written broadly and may very well encompass a lot of behavior.  Given that, our recommendation is that, if you’re subject to a Virginia custody order, follow the order.

To be clear, we don’t practice family law because we understand how emotionally draining divorce and custody issues tend to be.  So, our advice to “just do what the order says,” is overly simplified. With that being said, if you need any additional incentive to follow the court’s order, its to avoid criminal prosecution.

But, James, can’t I use this against the mother or father of my child?  They keep breaking the custody order, and I want to get a warrant.

Look, if you feel that you’re the victim of a crime, you have ever right to seek help from our criminal justice system. You can call your local magistrate or Commonwealth’s Attorney’s office for guidance.

But, keep in mind, that you may open a door to the other parent seeking the exact same warrant against you.  If you’ve violated a custody order, and seek to have the other person prosecuted, you face exposure too.  And you may very well give that other person the idea that they wouldn’t have had without your actions.  Stated another way, don’t abuse our criminal justice system.  It may come back to bite you.

Still have questions?

Make sure to check out our Personal Injury & Criminal Defense Practice Pages where we’ve answered many other questions you likely have.  James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews.  Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.