                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges McCullough, Decker and Senior Judge Felton
UNPUBLISHED



              ELIZABETH A. FOSTER
                                                                                MEMORANDUM OPINION*
              v.      Record No. 1508-15-2                                          PER CURIAM
                                                                                  FEBRUARY 23, 2016
              RANDY A. FOSTER


                                   FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                                                 Paul W. Cella, Judge

                                (Debra L. Mallory; Taliaferro & Mallory, LLP, on brief), for
                                appellant.

                                No brief for appellee.


                      Elizabeth A. Foster (mother) appeals the custody ruling in a final decree of divorce. Mother

              argues that the trial court erred by (1) finding that the fourth factor in Code § 20-124.3 was “the

              most important factor, but failing to give due consideration ‘to other important relationships of the

              child, including but not limited to siblings, peers, and extended family members;’” (2) failing to

              consider the history of family abuse committed by Randy A. Foster (father); (3) failing to consider

              father’s “failure to actively support the children’s contact and relationship with Mother, including

              the Father unreasonably denying the Mother access to and visitation with the children;” (4) failing

              to consider father’s twelve-hour work days and his thirty-six-hour per month commitment to the

              local fire department; (5) “giving significant weight to an irrelevant factor, i.e. whether a parent

              resides in someone else’s house, and finding it to be a negative factor against the Mother, but not

              against the Father;” (6) failing to consider “the nature and extent of the Mother’s and the Father’s

              respective support systems;” (7) “basing its decision on conclusions and opinions with no evidence

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
in the record to support them;” and (8) failing to consider father’s “failure to supervise his youngest

child, allowing the child to be exposed to a hazardous material.” Upon reviewing the record and

the opening brief, we conclude that this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. See Rule 5A:27.

                                          BACKGROUND

        “On appeal, we view the evidence in the light most favorable to . . . the party prevailing

below.” D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 335, 610 S.E.2d 876, 882 (2005)

(citations omitted).

        Mother and father married on July 9, 2009 and separated on March 16, 2013. The parties

have three minor children.

        On April 26, 2013, mother filed a complaint for divorce. Father filed an answer and

cross-complaint. On June 18, 2013, the trial court entered a pendente lite order and awarded

joint legal custody to the parties and primary physical custody to the father.

        On July 1, 2015, the parties appeared before the trial court for a final hearing. The parties

resolved most of their issues, but not custody and visitation. After hearing the evidence and

argument, the trial court awarded joint legal custody to the parties and primary physical custody

to father. The trial court noted that the children were doing well in school and had friends in

Dinwiddie, where they lived with father. It further emphasized that the children needed stability,

which they would have in father’s care. Mother lived in a different locality, and the children

would have to switch schools if they were to live with mother. The trial court found it was in the

children’s best interests to remain in father’s custody.

        On September 16, 2015, the trial court entered the final decree of divorce and an

addendum to the final decree of divorce. This appeal followed.




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                                             ANALYSIS

        Mother appeals the trial court’s award of primary physical custody to father. “In matters

of custody, visitation, and related child care issues, the court’s paramount concern is always the

best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795

(1990). “[T]here is a presumption on appeal that the trial court thoroughly weighed all the

evidence, considered the statutory requirements, and made its determination based on the child’s

best interests.” D’Ambrosio, 45 Va. App. at 335, 610 S.E.2d at 882 (citing Brown v.

Spotsylvania Dep’t of Soc. Servs., 43 Va. App. 205, 211, 597 S.E.2d 214, 217 (2004)). “As long

as evidence in the record supports the trial court’s ruling and the trial court has not abused its

discretion, its ruling must be affirmed on appeal.” Brown v. Brown, 30 Va. App. 532, 538, 518

S.E.2d 336, 338 (1999).

        A court “shall consider” the following factors in Code § 20-124.3 to determine the “best

interests of a child” for custody or visitation:

                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;

                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;


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                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
                or sexual abuse. 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.

        Mother challenges the trial court’s ruling in light of several of the Code § 20-124.3

factors. When it issued its ruling, the trial court stated, “In terms of what is in the best interest of

the children, I think the fourth factor, the needs of the children, is really the most important one

because they’re the ones this is all about.” Mother argues that the trial court failed to consider

that father did not promote the children’s relationships with their extended family. There was

evidence that father was estranged from his paternal side of the family. Mother testified that

during her visitation time, she took the children to visit their paternal grandfather and other

paternal relatives, as well as her extended family. She explained that her family and father’s

paternal family were available to help her with the children. The trial court considered the

parties’ relationship with their extended families and noted that father’s “rupture with his father

is unfortunate.”

        Mother also questions the trial court’s finding that the children were doing well in school,

but the parties testified about how well the children were doing. Mother herself testified that

oldest child was doing “fairly well in school” and later that the children were doing “just fine.”

The youngest child was not in school. The oldest child was in first grade, and the middle child

was in kindergarten.


                                                  -4-
       In addition to her challenge to the fourth factor, mother argues that the trial court erred in

its assessment of the ninth factor of Code § 20-124.3. She asserts that she presented evidence of

father’s temper and abuse. Mother relies on the fact that in November 2012, father was charged

with assault and battery of their child, who was three years old at the time. The Dinwiddie

County Juvenile and Domestic Relations District Court found that the facts were sufficient to

find guilt but deferred adjudication to November 27, 2014, at which time the charges were

dismissed. Mother also reiterates father’s arguments with his father to illustrate father’s anger.

She also testified about an incident when the youngest child was not yet two years old, and he

got diesel fuel on him at the fire station where father volunteered. Mother argued that father was

not adequately supervising the child and exposed him to “hazardous” materials.

       Mother also contends the trial court did not consider the sixth factor of Code § 20-124.3.

Mother alleges that father did not allow her to speak with the children on a daily basis and denied

some of her requests for additional visitation. Father testified that mother speaks with the

children on the phone several times a week. He gave examples of how he has tried to work with

mother in providing her additional visitation, but she would not work with him. The trial court

disagreed with mother and said, “I don’t necessarily look at it as Mr. Foster trying to be a bully

or trying to see what the minimum is he can get away with. I look at it as being a lack of

agreement on both sides with some fault on both sides.”

       Mother further asserts that the trial court erroneously considered the parties’ work

schedules. Both parties work shift work with rotating schedules.1 Father testified that he

previously worked day shift from 7:00 a.m. to 7:00 p.m. for two weeks, and then worked night

shift from 7:00 p.m. to 7:00 a.m. for two weeks. However, as of July 1, 2015, he permanently


       1
        They work four days one week and three days the next week, and they are off every
other weekend. Previously, wife was off when husband was at work, and husband was off when
wife was at work.
                                            -5-
works day shift. In addition, he volunteers with a local fire department for thirty-six hours per

month. Meanwhile, mother works a permanent night shift from 6:00 p.m. to 6:00 a.m. The trial

court held that it would not be in the children’s best interests “to uproot them and move them

somewhere else where the parent is working all night.” The trial court found that father’s new

work schedule will be “a big improvement and be very helpful.” Father’s shift was now

consistent and provided more stability.

       In addition, mother contends the trial court erred by “giving significant weight to an

irrelevant factor, i.e. whether a parent resides in someone else’s house.” The trial court

considered both parents’ living situations and said, “With Ms. Foster working this schedule

where she works all day and all night and odd times living in someone else’s house, I don’t think

that overall environment would be in the children’s best interest.” Mother testified that she lived

with her aunt and uncle and their three boys. She explained that the parties’ daughter has her

own bedroom, and their two sons share a bedroom with one of her nephews. Father testified that

he lives with his girlfriend. The trial court’s comments do not indicate that it gave “significant

weight to an irrelevant factor;” instead, the trial court considered the parties’ living situations as

one part of its custody decision.

       In issuing its ruling, the trial court emphasized that “the best interest of the children is the

paramount factor.” The trial court examined how the children were doing in father’s custody.

The evidence supports the trial court’s conclusion that they are doing well.

       Despite mother’s arguments, a court “is not required to quantify or elaborate exactly what

weight or consideration it has given to each of the statutory factors.” Sargent v. Sargent, 20

Va. App. 694, 702, 460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. App. 337,

345, 349 S.E.2d 422, 426 (1986)). The trial court clearly considered the children’s best interests

and focused on the stability that father offered them.

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       “Where the record contains credible evidence in support of the findings made by that

court, we may not retry the facts or substitute our view of the facts for those of the trial court.”

Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992).

Although the record shows that Elizabeth Foster is a loving and devoted parent and that Randy

Foster is not without his flaws, it was for the trial court to weigh the evidence in its totality. We

will not substitute our judgment for that of the trial court so long as credible evidence supports

the judgment below. The evidence supports the trial court’s ruling. Accordingly, the trial court

did not err in awarding physical custody to father.

                                           CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

                                                                                            Affirmed.




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