Silvius v. Silvius

In March 2000, the circuit court decreed joint custody with physical custody of the couple’s two children to the father.  In May 2002, the mother moved for a change of custody and visitation.  The circuit court fixed specific times and dates for visitation and continued earlier restrictions on the mother’s use of alcohol and tobacco during visitation.  The order prohibited her from smoking in the presence of the children or smoking in her residence during visitation.  The mother then asserted that the trial court lacked jurisdiction to restrict her use of alcohol and tobacco during visitation with her two children.  The Court of Appeals of Virginia affirmed the circuit court’s findings, noting that the mother “continuously violated an earlier order forbidding her to smoke in front of the children.  On one occasion the mother taped a plastic sheet between the front and back seats of her car so she could smoke while driving with the children.  The father testified that her smoking endangered the health and welfare of the children.”

2005 Va. App. LEXIS 292, 20.4 TPLR 2.735, (Court of Appeals of Virginia 2005).