COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judges Elder and Annunziata 

Argued at Richmond, Virginia 

ANNE FRANZEN JOHNSON 

 OPINION BY 

v. Record No. 2200-96-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 DECEMBER 9, 1997 

THOMAS ARTHUR JOHNSON 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Donald M. Haddock, Judge 

 Richard E. Crouch (John Crouch; Crouch & 

Crouch, on briefs), for appellant. 

 James Ray Cottrell (Christopher W. 

Schinstock; Gannon, Cottrell & Ward, P.C., on 

brief), for appellee. 

 Anne F. Johnson (mother) appeals the trial court's decision 

granting sole custody of Amanda Johnson (child) to Thomas A. 

Johnson (father). Mother argues that the trial court erred in: 

(1) finding that it had jurisdiction to modify its prior custody 

order; (2) refusing to defer the exercise of jurisdiction over 

the custody of Amanda to the Swedish courts; and (3) finding 

mother in contempt. We hold that the trial court properly 

exercised its jurisdiction and affirm. 

I. BACKGROUND

 Father is an attorney with the United States Department of 

State, and mother is an attorney with the Swedish Ministry of 

Foreign Affairs. The parents met in Switzerland and were married 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 
 2 

on December 6, 1986. Their only child was born in Switzerland on 

November 11, 1987. In 1990, father was posted to Washington, 

D.C. and moved to Virginia, and mother was posted to New York 

City. The child split her time equally between her parents' 

homes. 

 The parties separated on December 31, 1990. Mother first 

filed for custody in New York City, but the parties agreed that 

Virginia was the more appropriate forum. On February 8, 1991, 

they signed a Settlement Agreement providing for joint custody 

and giving the child essentially equal time with both parents. 

The Circuit Court of the City of Alexandria (trial court) 

incorporated this agreement into a final divorce decree dated 

February 11, 1992. The terms of the custody agreement required 

the child to spend two weeks with father and two weeks with 

mother on an alternating basis. The trial court found that in 

this "unique" situation, the child had a "fully established home 

in both Virginia and in New York, with a separate set of friends, 

social activities, schooling, church, and recreational activities 

of the most comprehensive nature in both locations." 

 On June 16, 1993, father filed a petition and affidavit for 

modification of the custody decree because of his concern that 

mother was planning to relocate to Sweden with the child. Father 

alleged that he had been advised "on competent authority by 

Swedish counsel" that the only way a Virginia court could 

maintain jurisdiction was to "provide for alternating but equal 
 3 

time of no more than one school year, i.e. one year in Sweden and 

one year in the United States, with the specific finding that the 

Father's domicile will remain the habitual residence of the 

child." (Emphasis added). Father requested the following: 

 That for the foregoing reasons, none of which 

were contemplated at the time the last 

custody decree was entered and which 

constitute a substantial change in 

circumstances, the best interests of the 

child require that a modification decree be 

entered by this Court providing, at a 

minimum, that the parties alternate custodial 

residences with the minor child from school 

year to school year, with an equal division 

of remaining time, and with appropriate 

custodial visitation time while the child is 

with each parent, and that a finding be made 

that the Father's domicile shall be the 

child's habitual residence regardless of time 

which the child may be scheduled to spend 

with her mother in Sweden. 

 On June 23, 1993, the trial court scheduled a hearing on the 

merits. Pending that hearing, the trial court ordered that the 

minor child's "habitual residence" was to be the residence of her 

father in Virginia, and that it had continuing and exclusive 

jurisdiction to decide all matters concerning the care and 

custody of the child. The court also allowed mother to take the 

child with her to Sweden until three days prior to the date set 

for trial, but provided as follows: 

 That the failure of [mother] to return 

to the Commonwealth of Virginia . . . with 

the minor child . . . as required by the 

terms of this Decree shall constitute 

contempt of this Court Order and cause an 

immediate vesting of sole custody of the 

minor child of the parties in the Petitioner. 

 That [mother] is enjoined and prohibited 
 4 

from taking any action to change or modify 

this Decree or to seek custody of the minor 

child of the parties through the courts of 

Sweden or any other jurisdiction except the 

Circuit Court for the City of 

Alexandria . . . . 

Both parties and their respective counsel agreed to the terms of 

the decree and endorsed the order with no objection. 

 At the ore tenus hearing on November 12, 1993, both parties 

were represented by counsel. Claes Renstrom, a Swedish domestic 

relations attorney, testified as an expert witness for father 

regarding the enforceability of the parties' custody agreement by 

a Swedish court. He testified that: 

 [t]he important thing regarding this whole 

case from the Swedish point of view is the 

question of whether [the child] will acquire 

habitual residence, or domicile, which . . . 

 in . . . Swedish legal terms is called 

hemvist (phonetic) in Sweden. 

 If she has that, and if she requires [sic] 

this, and let's call it domicile, or habitual 

residence, or whatever you like, . . . if she 

acquires that, then it is possible for Mrs. 

Johnson at every time to go to the Swedish 

Court, and ask to have sole custody of the 

child. 

Following this hearing, the parties agreed to settle the issue of 

custody and a final consent order was entered on December 28, 

1993. This order modified the custody terms of the divorce 

decree and outlined a new schedule for physical custody.1

 The 

 

 1Under the December 1993 modified custody agreement, the 

parties were to share joint legal custody and physical custody 

would alternate. Mother had physical custody from August 20, 

1993 to August 19, 1995, and father's physical custody was 

scheduled from August 20, 1995 to August 19, 1997. Each parent 

was to have vacation visitation during the term of the other's 
 5 

trial court also made the following findings: 

 [T]his Court hereby expressly finds that it 

has continuing and exclusive jurisdiction to 

decide all matters relating to the care and 

custody of the minor child . . . ; and the 

Petitioner's residence in the Commonwealth of 

Virginia, United States of America, and not 

Sweden, shall constitute the place of 

residence for the purpose of all 

adjudications of custody and visitation of 

the said minor child; and, that the Courts of 

Sweden as well as all other courts anyplace 

in the world, shall not acquire jurisdiction 

over the custody of the child by reason of 

the Respondent's residence in the Country of 

Sweden, . . . . 

 IT IS FURTHER ORDERED that neither party 

shall seek modification of this Order without 

prior leave of this Court and Notice to the 

other party. 

 Mother made no objection to this order and agreed to its 

provisions. Shortly thereafter, she relocated to Sweden and took 

the child with her. Visitation proceeded on schedule until early 

1995. 

 In January 1995, mother, contrary to the December 28, 1993 

consent order, filed for custody in the Solna District Court of 

Sweden. That court issued a "writ of summons" requiring father 

to appear to "reply to the points of claim and other submissions 

presented by" mother. Additionally, mother refused to cooperate 

with father's upcoming Easter visitation. 

 On March 20, 1995, father filed in the trial court a "motion 

 

physical custody. The agreement also set out child support 

payments from father during mother's periods of physical custody 

and visitation. 
 6 

 

for order finding defendant in violation of custody decree and 

wrongfully retaining child in violation of complainant's 

custodial rights." Father alleged several violations of the 

express terms of the December 1993 consent order, including the 

fact that mother had instituted a court action in Sweden, that 

she had attempted to invoke the jurisdiction of the Swedish court 

over the custody issue, that she had refused all attempts by 

father to schedule his weeks of physical custody of the child, 

and that she had wrongfully retained the child. 

 On March 27, 1995, the trial court held a hearing on 

father's motion. The hearing was continued "for the purpose of 

giving [mother] the opportunity to explain her conduct, obtain 

active representation of her interests, and inform the Court of 

any relevant and pertinent information." Mother acknowledged 

notice and requested another continuance because she could not 

make travel arrangements or arrange for representation in such a 

short time. On April 12, 1995, the court denied her request and 

issued an order finding mother in violation of the express terms 

of the December 1993 order and directing mother to relinquish 

custody to father to compensate him for the time she had 

wrongfully retained the child.2

 

 2Two separate court systems in Sweden heard various claims 

and appeals between January 1995 and May 1996. Mother first 

filed for custody in Sweden in the Solna District Court on 

January 25, 1995. That court dismissed her claim on April 5, 

1995, holding that the child was domiciled in Virginia. Mother 

appealed to the Regular Appeals Court (Svea Hovratt), which 

reversed on September 7, 1995. 

 Father filed an application on March 14, 1995 for return of 
 7 

 

 On May 9, 1996, the Swedish Supreme Administrative Court 

(Regeringsratten) issued its decision finding that mother had not 

illegally retained the child and that the child's "hemvist" was 

in Sweden.3

 The court ruled that "[t]he requirements for 

transfer of Amanda to the USA on the basis of the enforcement act 

therefore do not exist. Anne Franzen Johnson's main request 

should therefore be granted." 

the child under the Hague Convention. Both parties attended a 

hearing on the application in the County Administrative Court 

(Lansratten), which found the child's domicile to be Virginia 

and, on May 19, 1995, ordered her return. Mother appealed this 

order to the Administrative Appeals Court (Kammaratten), which 

reversed the order on June 19, 1995. Father filed a second 

application with the Lansratten, which, on October 6, 1995, again 

found that the child's domicile was Virginia and ordered her 

return. Mother appealed to the Kammaratten, which, on December 

19, 1995, found that the child's domicile was Virginia and 

ordered the child's return scheduled for December 22, 1995. The 

Supreme Administrative Court (Regeringsratten) issued a stay on 

the return order on December 21, 1995, and reversed the return 

order on May 9, 1996, on the ground that the child's domicile was 

Sweden. 

 3The court explained its interpretation of the term 

"habitual residence" as follows: 

 The term "habitual residence," which 

corresponds to "hemvist," is not defined in 

the Hague Convention either. In general, it 

may be said that consideration of the 

question of habitual residence under the 

Convention is primarily a matter of making an 

overall assessment of circumstances which may 

be observed objectively, such as the length 

of sojourn, existing social ties and other 

factors of a personal or occupational nature 

which may indicate a more permanent 

attachment to one country or the other. In 

the case of a small child, the habitual 

residence of person who has custody, and 

other family and social aspects, must be the 

decisive factors. 
 8 

 In July 1996, father filed a "motion for order of sole 

custody to be granted complainant together with other relief." 

Additionally, he filed an affidavit and a "petition for issuance 

of rule to show cause." On July 3, 1996, the trial court issued 

a rule to show cause against mother for contempt of the court's 

custody order. In August 1996, mother filed a "motion to dismiss 

or defer" in the trial court. Father filed a response and a 

cross-motion for sanctions against mother. After a hearing at 

which mother was represented by counsel, the trial court found 

mother to be "in willful, multiple, and continuing contempt of 

this Court's orders of December 28, 1993 and April 12, 1995." 

The court also directed mother to produce the child, ordered 

mother to pay a fine and father's attorney fees and related 

costs, terminated father's child support obligation, and granted 

sole and exclusive custody to father. In addition, the court 

reserved jurisdiction as necessary and enjoined mother from 

proceeding any further in the courts of Sweden with any aspect of 

visitation or custody. 

II. STANDARD OF REVIEW

 In its deliberation concerning a child's welfare, including 

its determination of jurisdictional and enforcement issues, the 

trial court must make the child's best interests its primary 

concern. See Code § 20-124.2(B). See also Farley v. Farley, 9 

Va. App. 326, 327-29, 387 S.E.2d 794, 795-96 (1990). "[T]rial 

courts are vested with broad discretion in making the decisions 
 9 

necessary to guard and to foster a child's best interests." 

Farley, 9 Va. App. at 328, 387 S.E.2d at 795 (citing Eichelberger 

v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)). 

 "A trial court's determination of matters within its discretion 

is reversible on appeal only for an abuse of that discretion." 

Farley, 9 Va. App. at 328, 387 S.E.2d at 795 (citing M.E.D. v. 

J.P.M., 3 Va. App. 391, 398, 350 S.E.2d 215, 220 (1986)). "[W]e 

view the evidence and all reasonable inferences in the light most 

favorable to the prevailing party below." Lutes v. Alexander, 14 

Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992) (citation 

omitted). "Where a trial court makes a determination which is 

adequately supported by the record, the determination must be 

affirmed." Farley, 9 Va. App. at 328, 387 S.E.2d at 796. 

III. JURISDICTION

 Mother first argues that the trial court did not have 

jurisdiction to modify the December 1993 consent decree because 

the child's connections to Virginia had dissipated. In the 

alternative, she contends that the trial court erred in refusing 

to defer jurisdiction to the Swedish court as a more convenient 

forum, as the child's new home state, or as the site of a 

legitimately pending litigation. We hold that the trial court 

had continuing jurisdiction to enforce its own decree, and it did 

not abuse its discretion when it refused to defer jurisdiction to 

the Swedish court. 

Continuing Jurisdiction
 10 

 A Virginia trial court has continuing jurisdiction over the 

modification and enforcement of its decrees. 

 The court may, from time to time . . . revise 

and alter [its] decree concerning the care, 

custody, and maintenance of the children and 

make a new decree concerning the same, as the 

circumstances of the parents and the benefit 

of the children may require. The intentional 

withholding of visitation of a child from the 

other parent without just cause may 

constitute a material change of circumstances 

justifying a change of custody in the 

discretion of the court. 

Code § 20-108. See also Orlandi v. Orlandi, 23 Va. App. 21, 26, 

473 S.E.2d 716, 718 (1996). "The court shall have the continuing 

authority and jurisdiction to make any additional orders 

necessary to effectuate and enforce [custody and visitation 

orders]." Code § 20-124.2. 

 In the instant case, the trial court's consent decree of 

December 1993 set out a schedule for shared custody and several 

other provisions, including an agreement that neither party would 

initiate related proceedings elsewhere without the permission of 

the trial court. Both parties agreed to be bound by these terms. 

 When mother filed for custody in Sweden in January 1995, the 

Virginia trial court clearly had jurisdiction to consider this 

violation and to enforce its ongoing decree. 

 Mother argues that the child's connections with Virginia 

dissipated during the time she was in Sweden throughout 1994 and 

thus rendered these provisions unenforceable. This argument 

ignores the fact that the child was located in Sweden pursuant to 
 11 

the Virginia trial court's custody schedule, which allocated 

equal time to each of the parents. At no time did the child's 

"residence," as agreed to by the parties, change. The mere fact 

that mother received her scheduled time first under the order did 

not invalidate the remainder of the agreed-upon schedule or the 

other court-ordered provisions. 

 A party must obey an existing custody order until a 

modification order supersedes it. "[T]he custody decree is 

conclusive as to all issues of law and fact decided and as to the 

custody determination made unless and until that determination is 

modified pursuant to law." Code § 20-135. Here, mother, who had 

consented to the custody order and schedule, denied father his 

court-ordered visitation and refused to return the child to 

Virginia, as the consent decree directed. These actions do not 

support her contention that she has acted "in good faith and in 

orderly fashion." Rather, they provide apt justification for the 

trial court's enforcement of its decree. To hold otherwise would 

allow any dissatisfied custody litigant to divest a court of its 

inherent power to enforce a valid order by simply taking the 

child to another jurisdiction. Such an outcome is not 

contemplated by either historical analysis or statutory 

authority. 

Inconvenient Forum

 Mother next contends that even if the trial court had 

continuing jurisdiction to modify its existing custody decree, it 
 12 

erred by failing to defer jurisdiction to Sweden as a more 

convenient forum under Code § 20-130. Mother has not 

demonstrated error or an abuse of discretion in the trial court's 

exercise of jurisdiction over this matter. 

 The Uniform Child Custody Jurisdiction Act (UCCJA) is a 

reflection of the public concern over the increasing numbers of 

multi-jurisdictional custody battles. Although the UCCJA 

explicitly applies to states and possessions of the United 

States, Code § 20-125(10), "[t]he general policies of this 

chapter extend to the international area." Code § 20-146. Of 

particular concern is the frequency of child-snatching and 

wrongful retention: 

 Often, the parent who loses the custody fight 

is unwilling to accept the court's judgment. 

 The dissatisfied parents will remove the 

child in an unguarded moment or fail to 

return him after a visit and will seek their 

luck in the court of a distant state where 

they hope to find - and often do find - a 

more sympathetic ear for their plea for 

custody. 

* * * * * * * 

 [T]he Virginia UCCJA was enacted to avoid 

jurisdictional competition and conflict with 

courts of other states in matters of child 

custody; to promote cooperation with courts 

of other states . . . to discourage 

continuing controversies over child custody; 

to deter abductions and other unilateral 

removals of children undertaken to obtain 

custody awards; . . . and to promote the 

exchange of information and other forms of 

mutual assistance between courts of this 

state and those of other states concerned 

with the same child. 
 13 

Middleton v. Middleton, 227 Va. 82, 91, 93, 314 S.E.2d 362, 366, 

367 (1984) (citation omitted) (emphasis added). 

 Under Code § 20-130(A), "[a] court which has jurisdiction 

[to modify a decree] may decline to exercise its jurisdiction 

. . . if it finds that it is an inconvenient forum . . . and that 

a court of another state is a more appropriate forum." We will 

reverse the court's decision only upon a finding of abuse of 

discretion. See Farley v. Farley, 9 Va. App. 326, 328, 387 

S.E.2d 794, 795 (1990). 

 When conducting a forum non conveniens analysis, the court 

shall consider if it is in the interest of the child that another 

state assume jurisdiction. For this purpose, it may take into 

account the following factors, among others: 

 1. If another state is or recently was the 

child's home state; 

 2. If another state has a closer connection 

with the child and his family or with the 

child and one or more of the contestants; 

 3. If substantial evidence concerning the 

child's present or future care, protection, 

training, and personal relationships is more 

readily available in another state; and 

 4. If the parties have agreed on another 

forum which is no less appropriate. 

Code § 20-130(C) (emphasis added). 

 Applying these factors, we find the trial court did not err 

in refusing to decline jurisdiction under the facts of this case. 

 Virginia was and is the child's home state by agreement. Under 

the consent decree, father's residence in Virginia was the 

child's "place of residence for the purpose of all adjudications 
 14 

of custody and visitation." The parties agreed to this place of 

residence designation in anticipation of the child's stay in 

Sweden. The child was to have equal time in both homes. But for 

mother's wrongful retention, the child would have been returned 

to Virginia. While the most recent evidence concerning the 

child's care was in Sweden, pursuant to the terms of the December 

1993 consent decree, the evidence concerning the child's future 

care would develop in Virginia. Finally, and of equal 

importance, the parties formally agreed that they intended that 

"Virginia shall be the only forum for adjudication of custody 

. . . matters." 

 Also relevant to the inquiry is the evidence in the record 

that the Swedish court system differs significantly from our own 

in matters of child custody. Father's expert testified that 

Swedish courts do not grant joint custody and that "since there 

is no statute in the Swedish law [requiring recognition of 

foreign custody orders,] foreign custody decisions cannot in 

principle have any effect in Sweden whatsoever." Additionally, 

in the instant case the Swedish appellate courts have refused to 

give comity to custody orders from the Virginia trial court.4

 

This case differs from Middleton where the Supreme Court was "not 

 

 4"[T]he legal basis for recognizing the law of another 

country is the doctrine of comity . . . [which is] a rule of 

voluntary consent . . . defined as a courtesy or a willingness to 

grant a privilege, not as a matter of right but out of deference, 

respect, and good will." In re S.M., 938 S.W.2d 910, 918-19 

(Mo. App. 1997) (citations omitted). 
 15 

reluctant to endorse an international deferral to the courts of 

England because 'Virginia's jurisprudence is deeply rooted in 

. . . the English system of justice.'" 227 Va. at 94, 314 S.E.2d 

at 368 (quoting Oehl v. Oehl, 221 Va. 618, 623, 272 S.E.2d 441, 

444 (1980)). 

 Additionally, we "cannot overlook the child snatching aspect 

of the case." Middleton, 227 Va. at 95, 314 S.E.2d at 369. 

Although mother had rightful custody in Sweden for a period of 

time, her subsequent wrongful retention equates with child 

snatching. Id. In Middleton, the father, in violation of a 

visitation agreement, refused to return his children. Id. Here 

mother violated a custody agreement by wrongfully retaining her 

child after her period of physical custody concluded. In both 

cases, the violating parent gained "a tactical advantage by his 

conduct." Id. If we require the trial court to decline 

jurisdiction, "it will tend to encourage such conduct in the 

future, contrary to one of the principal purposes of the UCCJA." 

Id. at 96, 314 S.E.2d at 369. Based on the factors enumerated 

in the UCCJA and the trial court's clear continuing jurisdiction 

to modify its initial consent decree, we cannot say that the 

trial court abused its discretion in refusing to defer 

jurisdiction to the Swedish court as a more convenient forum. 

 Mother also argues that the trial court should have deferred 

jurisdiction because Sweden was the child's new home state.5

 

 

 5Under the UCCJA, a child's home state is "the state in 

which the child immediately preceding the time involved lived 
 16 

Home state status is but one factor to consider in the forum non

conveniens analysis. It is not determinative. In light of 

mother's agreement to designate Virginia as the proper forum for 

adjudication of custody matters and for making the initial 

determination of whether to defer, mother fails to establish an 

abuse of discretion. 

 In the instant case, during the time immediately preceding 

both the divorce decree and the consent decree of December 1993, 

the child spent short periods alternatively with each parent, 

resulting in an equal division of her time between Virginia and 

New York. At that time, the child had no single home state under 

the UCCJA definition. The trial court and the parties agreed 

that Virginia would be the child's home state, or habitual 

residence, for the purposes of all custody determinations, and 

that the parties would seek leave of that court before initiating 

custody proceedings elsewhere. This agreement became part of the 

December 1993 consent decree, a court order endorsed by both 

parties. Mother never objected to nor appealed either 

provision.6

 

with his parents, a parent, a person acting as parent, for at 

least six consecutive months. . . . Periods of temporary absence 

of any of the named persons are counted as part of the six-month 

or other period." Code § 20-125. 

 6Under the general law provisions governing venue and 

inconvenient forum questions, and to which this issue may be 

analogized, we note that party agreements have historically been 

accorded great weight. See Code § 8.01-265. Venue can be 

conferred by consent or waiver. See Lester v. Rose, 130 S.E.2d 

80 (1963). 
 17 

 We find unpersuasive her present contention that the child's 

presence in Sweden throughout 1994 supports a determination that 

Sweden has become the appropriate forum as the child's new "home 

state." Virginia was the child's home state at the beginning of 

the proceedings, and father continues to reside in Virginia. 

Mother did not avail herself of the opportunity to appear before 

the trial court to argue a change in circumstances justifying the 

designation of an alternate home state. The original agreement 

incorporated in the trial court's order contemplated that the 

trial court would consider deferral after a hearing. 

Consequently, mother is still bound by the trial court's 

determination of habitual residence and the procedural 

precondition to which she agreed. See Code § 20-130(C)(4). The 

trial court did not abuse its discretion in recognizing Virginia 

as the appropriate forum and refusing to defer to the Swedish 

court.7

 

 7The record contains multiple references to the Hague 

Convention on the Civil Aspects of International Child Abduction. 

 The Hague Convention provides a forum for discussion and 

resolution of issues surrounding international child abduction 

and wrongful retention, and the United States and Sweden are both 

signatories. Mother is the Swedish Ministry of Foreign Affairs 

representative to the Hague Convention for these issues. She 

argues that the Hague Convention does not apply in this case 

because she did not wrongfully retain the child. Her government 

has apparently adopted a supporting position: that a child's 

custody may be litigated wherever the child resides. The United 

States State Department has disagreed with this position on 

policy grounds. The Hague Convention has not drafted a 

controlling definition of habitual residence. 

 Resolution of this international disagreement is not 

necessary to our present decision. Mother appeals the issue of 

jurisdiction solely under the UCCJA, and we find Virginia law 

sufficient to enable us to reach a conclusion on these grounds. 
 18 

 

 Mother's final contention is that the trial court should 

have deferred jurisdiction to Sweden because a new proceeding was 

pending in Sweden. Code § 20-129 states that a court 

 shall not exercise its jurisdiction . . . if 

at the time of filing the petition a 

proceeding concerning the custody of the 

child was pending in a court of another state 

exercising jurisdiction substantially in 

conformity with this chapter. 

This contention is without merit.8

 The "priority in time" aspect 

of the UCCJA rests within the Commonwealth while the ongoing 

custody order remains in effect. Mother cannot circumvent the 

law by simply filing a new petition in Sweden. 

 The Swedish court based its jurisdiction solely on the 

child's presence in Sweden. However, by its very nature, the 

trial court's order contemplated an ongoing custody arrangement, 

and the "[p]hysical presence of the child, while desirable, is 

not a prerequisite for jurisdiction to determine [her] custody." 

 Code § 20-126(C). The agreement had specific provisions 

outlining the schedule for alternating physical custody, summer 

and vacation visitation, travel arrangements, and schooling. The 

child's presence in Sweden until January 25, 1995 was pursuant to 

a valid Virginia order, and the child's continuing presence after 

January 25, 1995 was the result of mother's wrongful retention of 

 8This case is distinguishable from the situation in D'Agnese 

v. D'Agnese, 22 Va. App. 147, 156, 468 S.E.2d 140, 144 (1996), 

where the court found "that the Illinois court had obtained 

emergency jurisdiction," because the mother took the children out 

of state to protect them from abuse. There is no emergency 

exception applicable here. 
 19 

the child in defiance of the trial court's order. Wrongful 

retention does not confer "jurisdiction substantially in 

conformity with this chapter" and would not effectuate the 

requirements of Code § 20-129. Moreover, since the Swedish court 

refused to grant comity to the trial court's order, requiring the 

trial court to defer jurisdiction would be unreasonable and would 

undermine the purposes of the UCCJA.9

 

IV. CONTEMPT

 Mother also asserts that the trial court erred in finding 

her in contempt and granting sole custody to father in August 

1996. Mother argues that her actions did not rise to the level 

of contempt because she did not abduct the child, but sought only 

modification of the trial court's December 1993 order. She 

contends that "[t]he fact that she violated an order of the 

Circuit Court prohibiting her from doing this is hardly 

 

 9Mother also argues that the trial court erred in finding 

that she had waived her right to seek modification of the custody 

agreement in a foreign court. Mother signed a consent decree in 

which she agreed that "Virginia shall be the only forum for the 

adjudication of custody or visitation matters . . . now or in the 

future;" and "neither party shall seek modification of this Order 

without prior leave of this Court." A consent decree "is a 

contract or agreement between the parties to the suit . . . and 

is binding unless secured by fraud or mistake." Orlandi v. 

Orlandi, 23 Va. App. 21, 26, 473 S.E.2d 716, 719 (1996) (citation 

omitted). Mother has not alleged either fraud or mistake in this 

case. Consequently, she is bound by the provisions of the decree 

which she dislikes, just as she was entitled to the benefit of 

the provisions granting her child support payments and the first 

term of physical custody. Under the decree, mother did not waive 

her right to any modification in a foreign court; she merely 

agreed she would not do what she did -- go to a Swedish court 

without obtaining prior leave from the trial court. 
 20 

controlling" and that an objective examination, "free from 

clamorous invective and confusing onslaughts of character 

assassination," supports her position. She further argues that 

she should not be held in contempt for her failure to relinquish 

custody or respond to the trial court's order to show cause 

because she "could not come here without being liable to . . . 

federal felony prosecution" and she "would be a victim of [the 

Parental Kidnapping Prevention Act, 18 U.S.C. § 1204] the instant 

she set foot on these shores." We find no merit in either claim. 

 The fact that mother chose to act in a manner that may give rise 

to criminal charges does not shield her contumacious behavior.10

 

 The trial court's authority to enforce its consent decree 

includes the ability "to punish as contempt of court any willful 

failure of a party to comply with the provisions of the order." 

Code § 20-124.2. "A trial court has the authority to hold an 

offending party in contempt for acting in bad faith or for 

willful disobedience of its order." Alexander v. Alexander, 12 

Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted). 

 "It is true that the inability of an alleged contemner, without 

fault on [her] part, to render obedience to an order of court, is 

a good defense to a charge of contempt." Laing v. Commonwealth, 

 

 10The underlying policy of Virginia's felony parental 

abduction statute, Code § 18.2-49.1, is similar to that of the 

Parental Kidnapping Prevention Act, 28 U.S.C.A. § 1738A. See

Foster-Zahid v. Commonwealth, 23 Va. App. 430, 437, 477 S.E.2d 

759, 762 (1996) (mother convicted of felony parental abduction 

under Code § 18.2-49.1). 
 21 

205 Va. 511, 514, 137 S.E.2d 896, 899 (1964) (citations omitted) 

(emphasis added). "But where an alleged contemner has 

voluntarily and contumaciously brought on [her]self disability to 

obey an order, [s]he cannot avail [her]self of a plea of 

inability to obey as a defense to the charge of contempt." Id.

at 515, 137 S.E.2d at 899. 

 Mother has demonstrated a willful and continuing failure to 

comply with the trial court's orders of December 1993 and April 

1995, provisions she agreed to and used to her advantage. 

Further, she continues to deny father contact and wrongfully 

retains the child. If she disagreed with the procedural 

precondition that she obtain leave of court before initiating 

modification proceedings elsewhere, or disagreed with any other 

terms of the December 1993 order, her available remedies included 

refusing to sign the consent decree and appeal. Instead, she 

used the agreement to remove the child from the United States. 

Her refusal to comply with terms to which she agreed and her 

disregard for the trial court's authority define contumacious 

behavior. 

 Mother's contention that fear of a federal kidnapping 

prosecution excuses her failure to appear and shields her from a 

finding of contempt has no merit. Her own behavior placed her in 

that position. Mother has disregarded the trial court's orders 

of December 1993 and April 1995 and continues to do so. "When 

one shows by [her] conduct a deliberate and studied effort to 
 22 

disobey a valid order of a court, [s]he subjects [her]self to 

punishment for contempt." Laing, 205 Va. at 515, 137 S.E.2d at 

899. 

 For the foregoing reasons, we affirm the trial court's 

August 9, 1996 change of custody, finding of contempt, imposition 

of fines, and award of father's costs and fees. Additionally, we 

remand for an award of further costs and counsel fees incurred by 

father in this appeal. See O'Loughlin v. O'Loughlin, 23 Va. App. 

690, 479 S.E.2d 98 (1996). 

 Affirmed and remanded.