                                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bumgardner
Argued at Richmond, Virginia


PETRI MADELINE VANDERVEER
                                                         MEMORANDUM OPINION∗ BY
v.     Record No. 0122-04-2                          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                              SEPTEMBER 28, 2004
ROBERT ALLEN VANDERVEER


                   FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                               Paul M. Peatross, Jr., Judge

                John H. Kitzmann (Davidson & Kitzmann, PLC, on briefs), for
                appellant.

                S. Braxton Puryear for appellee.


       Petri Madeline Vanderveer (wife) appeals the transfer of primary custody of her son,

Michael Vanderveer (Michael), to Michael’s father, Robert Allen Vanderveer (husband), pursuant

to Code § 20-124.2(B). She contends that the trial court erroneously based its ruling solely on

wife’s unmarried cohabitation with Christopher Collins (Collins), and wrongly concluded that

the custody transfer was in Michael’s best interests. We hold that the trial court did not err in

transferring custody from wife to husband, and affirm.

                                        I. BACKGROUND

       “On appeal, we construe the evidence in the light most favorable to [husband], the

prevailing party below, granting to [his] evidence all reasonable inferences fairly deducible

therefrom.” Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995) (citing

McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990)).



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       So viewed, the evidence established that husband and wife were married on July 2, 1994,

separated on August 10, 2001, and entered into a separation agreement on August 9, 2002. Their

separation agreement was incorporated into a final decree of divorce, entered by the Albemarle

County Circuit Court on October 21, 2002. The agreement granted primary physical custody of

Michael to wife.

       During the marriage, husband and wife lived in Charlottesville. Husband worked first as

a contractor for his father, then, after Michael was born, he was employed full-time in the Active

Guard Reserve of the Virginia National Guard. Wife began working as a nanny a few months

after Michael’s birth so that she could take Michael to work with her. After the separation, wife

moved about an hour outside Charlottesville, and husband remained in Charlottesville. Husband

was involved in Michael’s life both during and after the separation and divorce, and cared for

him often. Husband and wife would meet between their homes near Charlottesville to exchange

Michael for husband’s visits. Husband’s visitations were usually every other week for three

nights during this time. Michael was also close to husband’s large extended family, including

four cousins, who live in the Charlottesville area.

       Husband was deployed to Guantanamo Bay, Cuba in December 2002 as a member of the

Virginia Army National Guard Reserve, and returned to the United States in September 2003.

After husband’s deployment, Michael visited with husband’s parents every other weekend.

Husband spent several days of his two leaves from Cuba with Michael.

       In January 2003, while husband was deployed, wife informed him that she had relocated

to Florida with Michael in order to live with Christopher Collins, a man she had met in a bar in

Charlottesville in September 2002. She gave husband no prior notice that she was moving to

Florida with Michael:




                                                -2-
Q: You never said anything to [husband] about your plans to
move?

A: No.

Q: You never said anything to his mother?

A: I didn’t think it was relevant, since Rob was going to be
leaving, and he was going to be gone for a year, possibly longer.
Who knew?

Q: And you intended to take Michael with you when you moved?

A: Correct.

Q: And Rob’s parents were close to Michael, isn’t that correct?

A: Could have been closer, but correct.

Q: Okay. And he has a number of cousins in the area?

A: Right.

Q: The Vanderveers were a close family?

A: (No audible response.)

Q: And you didn’t think it was relevant to discuss that you were
moving to Florida?

A: No, sir.

Q: It wasn’t a matter of giving thirty days notice in advance. It
wasn’t a matter of saying a couple of days before you left. The
Vanderveers found out that you had moved to Florida after you
moved. Isn’t that correct?

A: Correct.

Q: You notified Rob by e-mail –

A: Right.

Q: - that you had moved?

A: (Indicate yes.)



                                -3-
        Wife testified that she worked as a dental assistant while in Florida, and had plans to

further her education. She also testified that she and Collins planned to get married in September

2004. Husband was released from active military duty in October 2003, and accepted a

non-deployable position as an army recruiter in Charlottesville, where he planned to live

permanently.

        The trial court found that husband and wife were both good parents, but that it was in

Michael’s best interests that custody be transferred to father. It cited wife’s unilateral decision to

move to Florida without notice to husband, and the need for Michael, age three and a half at the

time of trial, to be close to both parents. The court also cited wife’s financial dependence on a

man who was not her husband, the negative influence of her unmarried cohabitation with Collins

on the child, and Michael’s close relationship to father’s extended family in the Charlottesville

area.

        After the trial court’s ruling, wife married Collins. She then filed a motion to reconsider,

which the trial court denied.

                                            II. ANALYSIS

        On appeal, wife contends that the trial court erred in transferring primary custody to

father.1 We disagree.

        “It is well settled in Virginia that the best interest of the [child] controls the issue of a

change of custody or the issue of a custodial parent moving the children to another state.”

Simmons v. Simmons, 1 Va. App. 358, 362, 339 S.E.2d 198, 200 (1986). “In matters of a child’s

welfare, trial courts are vested with broad discretion in making the decisions necessary to guard



        1
          Although wife lists fourteen assignments of error, the sole issue raised in this appeal is
whether the trial court erred in transferring primary custody from the mother to the father under
the facts of this case.


                                                  -4-
and to foster a child’s best interests.” Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795

(1990).

                 In reaching a decision on the best interests of the child, the court is
                 guided by Code § 20-124.3, which specifies a myriad of factors
                 appropriate to the issues of custody and visitation. However, as
                 long as the trial court examines the factors, it is not required to
                 quantify or elaborate exactly what weight or consideration it has
                 given to each of the statutory factors. The trial court’s
                 determination of the child’s best interests is a matter of
                 discretion . . . , and, unless plainly wrong or without evidence to
                 support it, the court’s decree must be affirmed.

Sullivan v. Knick, 38 Va. App. 773, 783, 568 S.E.2d 430, 435 (2002) (internal citations and

quotations omitted), see also Bostick v. Bostick-Bennett, 23 Va. App. 527, 533, 478 S.E.2d 319,

323 (1996).

          Wife contends that the transfer of custody was not in Michael’s best interest and that the

trial court erroneously relied on wife’s unmarried cohabitation with Collins as the sole factor in

determining that the transfer of custody was in Michael’s best interest.2

          “In determining the best interest of a child for purposes of determining custody or

visitation arrangements,” the court must consider the following factors under Code § 20-124.3:

                 1. The age and physical and mental condition of the child, giving
                 due consideration to the child’s changing developmental needs;
                 2. The age and physical and mental condition of each parent;
                 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;
                 5. The role that each parent has played and will play in the future,
                 in the upbringing and care of the child;



          2
        Neither husband nor wife contests the trial court’s ruling that a change in circumstances
occurred.


                                                  -5-
               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;
               7. The relative willingness and demonstrated ability of each parent
               to maintain a close and continuing relationship with the child, and
               the ability of each parent to cooperate in and resolve disputes
               regarding matters affecting the child;
               8. The reasonable preference of the child, if the court deems the
               child to be of reasonable intelligence, understanding, age and
               experience to express such a preference;
               9. Any history of family abuse as that term is defined in
               § 16.1-228. If the court finds such a history, the court may
               disregard the factors in subdivision 6; and
               10. Such other factors as the court deems necessary and proper to
               the determination.

        In making his ruling, the trial judge specifically cited the factors he considered:

               So, this Code section that I’m required to consider is 21-24.3 [sic]
               and there are a number of factors, ten specifically, that I need to
               consider. And the attorneys have addressed those in closing
               argument. And I have looked at those and considering what I need
               to do in this case. So, I’ve looked at age, physical and mental
               condition of the child. I’ve looked at the age, physical and mental
               condition of each parent. I’ve looked at the relationship between
               the parent and the child and the involvement of each parent’s –
               involvement of each parent in the child’s life, the ability to assess
               and meet emotional, intellectual, and physical needs of the child,
               the relationships of the child, including family, the role each
               parent’s played in the life of the child and raising the child. The
               cooperation between the parents and permitting access to the child;
               preference of the child doesn’t apply due to the child’s age, and
               there’s no history of any family abuse.

        The trial judge elaborated more specifically on how these factors relate to the instant

case:

               The big concern to the court is that, in a preferred world, this child
               should be able to be raised by Mom and Dad and have access to
               Mom and Dad . . . . In this situation, the mother’s move to Florida
               has made that more difficult. Certainly the father being deployed
               made it more difficult to have continuing, constant contact with the
               child. His was not voluntary, hers was . . . there are [other]
               negative effects of [wife’s move], in that she’s moving in with this



                                                -6-
               man that is not the child’s father; that there has to be a new
               relationship. It takes away – a constant contact between father and
               child by moving the child to Florida. And we’re depending on a
               man to provide this financial support who has no legal obligation
               to do that. Much less, if you – if you want to be old fashioned, the
               moral atmosphere for the child is not one that the court looks on
               with favor. So, all that being said, having considered these factors,
               I find it’s in the best interest of the child that if the father’s going
               to be in Charlottesville with his family, that primary custody
               should be transferred to the father from the mother.

       Credible evidence supports the trial court’s ruling. The trial court was “not required to

quantify or elaborate exactly what weight or consideration it has given to each of the statutory

factors.” Sullivan, 38 Va. App. at 783, 568 S.E.2d at 435 (internal citations and quotations

omitted), see also Bostick, 23 Va. App. at 533, 478 S.E.2d at 323. Nevertheless, the trial court

emphasized the need for the child to be near both parents, wife’s voluntary removal of the child

from contact with father and his extended family without notice, wife’s reliance on a man who

had no obligation to care for her or Michael for financial support, and the unmarried

cohabitation’s affect on the child.3 Because the trial court’s analysis sufficiently reflects its

consideration of the factors set out in Code § 20-124.3, we cannot say that its judgment was

plainly wrong or without evidence to support it.

       Wife argues that Lawrence v. Texas, 539 U.S. 558 (2003), compels a different result. We

disagree. That case is factually inapposite. While finding that the Texas sodomy law banning

“deviate sexual intercourse” between consenting adults of the same sex, but not between

consenting adults of different sexes is unconstitutional, the Supreme Court did not extend its

ruling beyond that criminal context:



       3
         The trial court clearly did not base its ruling solely on wife’s unmarried cohabitation as
appellant asserts, since it denied wife’s motion to reconsider that was filed after she later married
Collins.



                                                 -7-
               The present case does not involve minors. It does not involve
               persons who might be injured or coerced or who are situated in
               relationships where consent might not easily be refused. It does
               not involve public conduct or prostitution. It does not involve
               whether the government must give formal recognition to any
               relationship that homosexual persons seek to enter . . . . The state
               cannot demean their existence or control their destiny by making
               their private sexual conduct a crime.

Id. at 578.

        Thus, Lawrence does not prevent a trial court from considering the atmosphere present in

a parent’s home in determining the best interest of the child. See also Piatt v. Piatt, 27 Va. App.

426, 499 S.E.2d 567 (1998).

        Accordingly, we affirm the judgment of the trial court.

                                                                                         Affirmed.




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