                                COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Frank and Humphreys
Argued by teleconference


KIMBERLY L. EVANS
                                                               MEMORANDUM OPINION* BY
v.      Record No. 0400-05-3                                    JUDGE ROBERT P. FRANK
                                                                  DECEMBER 28, 2005
STUART N. EVANS


                     FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                                 Michael L. Moore, Judge

                  Robert M. Galumbeck (Galumbeck, Necessary, Dennis & Kegley, on
                  brief), for appellant.

                  Stephen E. Arey (Stephen E. Arey, P.C., on brief), for appellee.


        Kimberly L. Evans, mother, appeals an order of the trial court awarding primary physical

custody of the parties’ daughter to Stuart N. Evans, father. On appeal, mother contends the trial

court erred by failing to properly consider the factors set forth in Code § 20-124.3(3), 20-124.3(4),

and 20-124.3(6); the father’s misconduct and the positive aspects of mother’s life; the

recommendations of the guardian ad litem; and the best interests of the child. For the reasons that

follow, we affirm the trial court.1




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
          The record reflects that the guardian ad litem for the child was provided notice of this
appeal pursuant to Rule 5A:6. However, we note that the guardian ad litem failed to file an
appellate brief, appear during oral argument, or otherwise enter an appearance before this Court.
According to Standard J of the “Standards to Govern the Performance of Guardians Ad Litem for
Children,” effective September 1, 2003, a guardian ad litem is required to “[f]ile appropriate
petitions, motions, pleadings, briefs, and appeals on behalf of the child and ensure the child is
represented by a [guardian ad litem] in any appeal involving the case.”
                                          BACKGROUND2

       The parties presented evidence at a hearing on August 11, 2004. Mother testified that she

has worked as a nurse at Bluefield Regional Medical Center for the past five years. She indicated

that she was the primary caretaker of the parties’ daughter.3 Daughter attended school in Bluefield

and was receiving good grades. Mother testified that if father were awarded custody, daughter

would have to move to a different city and change schools.

       Mother has a son from a previous marriage who is very close to the parties’ daughter.

Mother admitted she had an extra-marital affair during the summer and fall of 2002. She also

acknowledged her participation in “nude” video chat rooms through her computer.

       Father testified that during the marriage, he did most of the housekeeping and cooking for

the family. He would take care of the children while mother worked. When both parents worked,

his mother would care for the children. Father noted that mother would leave daughter with his

mother for days at a time. Father felt that mother was uncooperative in trying to equalize the

amount of time each parent spent with daughter. He testified that mother had not given him a

medical card from her employer while he had custody of daughter and that mother did not notify

him of daughter’s hospitalization in March 2004. He also noted that mother’s family was not close

to daughter and was not supportive. Father admitted that he has attended strip clubs.

       Father’s mother testified that the daughter has her own room at her house. After school, the

daughter would stay with her. Father works with his father at a shop located on his parents’

property, so father would be present with daughter during the day. Grandmother further testified




       2
        In lieu of a transcript, we review the facts as set forth in a written statement pursuant to
Rule 5A:8.
       3
           The record does not disclose the age of the child.
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that daughter has a good relationship with all members of father’s family, who are supportive in his

parenting efforts.

        Father testified that mother, a nurse, had taken diet pills, claratin, darvone, morphine, and a

syringe from the hospital where she was employed. He found these items hidden in various places

within the home. Mother responded that during her rounds she would pick up medications and put

them in her pockets to dispose of at the end of her shift. On one occasion, she brought the

medications home by mistake. Mother admitted that removing drugs from the medical center

violated hospital policy, yet her employer did not reprimand her for the incident.

        After the parties first separated, mother had custody of daughter and did not allow father to

visit the child for eight weeks until the parties appeared in the juvenile and domestic relations

district court.

        The guardian ad litem opined that it was in the best interests of daughter to be placed in

mother’s custody.

        On August 12, 2004, the trial court issued an opinion letter awarding primary physical

custody of daughter to father, with extensive visitation for mother. Mother filed a motion for

reconsideration, and the guardian ad litem filed a motion stating that it was in the child’s best

interests to be in mother’s custody. The trial court denied the motions and on November 9, 2004,

the court issued a second opinion letter, stating in detail the reasons for its decision. The trial court

also ordered the parties and the child to participate in counseling, as requested by the guardian ad

litem. Mother appealed to this Court.

                                              ANALYSIS

        When determining child custody or visitation arrangements pursuant to Code § 20-124.2, no

presumption exists in favor of either parent, and the trial court is required to give “primary

consideration” to the evidence presented as it relates to the factors listed in Code § 20-124.3 to

                                                   -3-
determine what arrangement is in the best interests of the child. See Code §§ 20-124.2, 20-124.3.

“The court shall assure minor children of frequent and continuing contact with both parents, when

appropriate, and encourage parents to share in the responsibilities of rearing their children,” but the

court retains the discretion to award “joint custody or sole custody.” Code § 20-124.2(B).

        The trial court is not required to quantify or elaborate what weight or consideration it has

given to each of the factors enumerated in Code § 20-124.3 or to weigh each factor equally. See

Sargent v. Sargent, 20 Va. App. 694, 702, 460 S.E.2d 596, 599 (1995). It is vested with broad

discretion to safeguard and promote the child’s interests, and its decision will not be reversed

unless plainly wrong or without evidence to support it. Farley v. Farley, 9 Va. App. 326, 328,

387 S.E.2d 794, 795 (1990). When reviewing a trial court’s decision on appeal, we view the

evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable

inferences. Wright v. Wright, 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002).

        Essentially, appellant challenges the sufficiency of the evidence. She argues that the trial

court did not properly consider the factors set out in Code § 20-124.3(3), 20-124.3(4) and

20-124.3(6), which provide in relevant part:

                In determining best interests of a child for purposes of determining
                custody or visitation arrangements . . . the court shall consider the
                following:

                           *       *       *       *       *       *       *

                3. The relationship existing between each parent and each child,
                giving due consideration to the positive involvement with the
                child’s life, the ability to accurately assess and meet the emotional,
                intellectual and physical needs of the child;

                4. The needs of the child, giving due consideration to other
                important relationships of the child, including but not limited to
                siblings, peers and extended family members;

                           *       *       *       *       *       *       *



                                                  -4-
                6. The propensity of each parent to actively support the child’s
                contact and relationship with the other parent, including whether a
                parent has unreasonably denied the other parent access to or
                visitation with the child[.]

        In its November 9, 2004 opinion letter, the trial court stated that both parents “have a good

relationship with the child and are able to meet her emotional, intellectual and physical needs.” The

court also noted that both parents participated in daughter’s activities. In addition, the trial court

stated that it was “concerned about the moral fitness of both parents,” citing mother’s adulterous

relationship and father’s attendance at “strip clubs.”

        Although mother argues on appeal that the trial court did not properly consider certain

factors of Code § 20-124.3, the trial court specifically stated that it considered “all the additional”

factors in Code § 20-124.3 in determining that it was in daughter’s best interests to be in the primary

physical custody of father, with both parents sharing legal custody. Furthermore, the trial court

sought to provide mother with generous visitation rights, finding that daughter “needs frequent and

meaningful contact with mother” and ordering an “expanded” visitation schedule with mother.

        Appellant next contends the trial court did not follow the recommendations of the guardian

ad litem. The written statement of facts shows that the guardian ad litem made her

recommendations to the trial court at the August 11, 2004 hearing. Subsequently, the guardian ad

litem filed a motion stating more specifically the reasons why she believed it was in daughter’s best

interest to be in mother’s custody. Thus, the record shows the guardian ad litem made her opinions

and recommendations known to the trial court. However, the recommendations of the guardian ad

litem are not binding or controlling on the court. Bottoms v. Bottoms, 249 Va. 410, 420, 457 S.E.2d

102, 108 (1995). Moreover, the trial court followed several of the recommendations of the guardian

ad litem, such as ordering the parties to obtain counseling and ordering the parents not to make

derogatory or inappropriate remarks concerning the other parent in the child’s presence. In addition,



                                                  -5-
the court ordered that daughter was not to be exposed to illegal or immoral behavior, a concern

expressed by the guardian ad litem.

        The record demonstrates that the trial court carefully considered and weighed the evidence.

Its decision focused on daughter’s best interests. Contrary to mother’s contention, the trial court

properly considered the relationship between each parent and the child, the child’s relationship with

other family members, the propensity of each parent to support the child’s relationship with the

other parent, the moral fitness of each parent, the recommendations of the guardian ad litem, and the

best interests of the child. Mother has not demonstrated that the trial court abused its discretion, and

we cannot say that the custody decision of the trial court was plainly wrong or without evidence to

support it. Accordingly, the trial court’s decision is affirmed.

                                                                                Affirmed.




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