                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


LINDA CINTRON
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2169-99-2                JUDGE DONALD W. LEMONS
                                              JULY 5, 2000
DAVID A. LONG


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     Timothy J. Hauler, Judge

          Deanna D. Cook (Bremner, Janus & Cook, on
          brief), for appellant.

          John N. Clifford (Clifford & Duke, on brief),
          for appellee.


     Linda Cintron ("mother") appeals the September 9, 1999

order of the Circuit Court of Chesterfield County granting David

Long ("father") custody of their thirteen-year-old daughter

("daughter").   On appeal, the mother contends that (1) the trial

court's order changing custody of the daughter from the mother

to the father is void for lack of subject matter jurisdiction;

(2) if subject matter jurisdiction existed, the trial court

abused its discretion in changing custody; and (3) the mother

should be awarded attorney's fees and costs for this appeal.

     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-16.010, this opinion is not designated for publication.
Mother presents three additional questions for review - one

concerning failure to grant a motion to reconsider and two

pertaining to visitation.    Our opinion renders it unnecessary to

address these three additional questions on appeal.     Because the

trial court abused its discretion by changing custody of the

daughter from the mother to the father, we reverse that ruling

and remand to the trial court.

                            I.   BACKGROUND

     The mother and the father were never married and never

lived together.   He is sixty-four years old, and she is

thirty-eight years old.   The daughter was born on May 13, 1986.

She lived with the mother from birth until August 13, 1999.      The

father visited the daughter approximately twice a year until she

was four years old, at which time he stopped visiting until

after her ninth birthday in 1995 when he visited "a couple of

times."    There was no further contact until November of 1997

when the father was given temporary visitation pursuant to his

November 3, 1997 petition for visitation and custody.     Dr.

Leigh D. Hagan, a forensic and clinical psychologist, was

appointed by the juvenile court to facilitate visitation.

     On January 5, 1998, the father withdrew his petition for

custody.   From the Fall of 1997 until August 12, 1998, the

father visited the daughter three times.      His visitation rights

were terminated in August of 1998 by the juvenile court.



                                 - 2 -
     The father appealed to the circuit court and, at the March

22, 1999 hearing, the judge began the proceedings noting "some

additional observations, just from reviewing this file."      He

asked, "Why is a twelve year old controlling the issue of

visitation?"   He noted that while he was not going to force the

daughter into a relationship with her dad that is "detrimental

to her best interest," "I've got to ask myself why is a twelve

year old controlling the issue of visitation.       That's what my

concern is."   Prior to hearing testimony, the court stated,

               I hate to put this focus on a twelve
          year old child.

                *     *     *     *     *       *       *

               I think it's almost criminal to do
          that. Now, unfortunately the statute says I
          have to do that, and I will.

               But I tell you, I don't like it. I
          think it's wrong. I think it's empowerment
          to a twelve year old child who apparently
          has got too much power already.

     Dr. Hagan testified that the mother was not supporting the

daughter's re-introduction to the father, that the mother

continued to exert great influence over the daughter and,

therefore, the trial court should require visitation for the

father and implement a specific schedule so that the daughter

would be given the opportunity to form her own opinion of the

father based on firsthand observations as opposed to the

mother's negative feelings toward the father.       Hagan stated that

he had no reservation regarding the father's character, interest

                                - 3 -
or capacity to look after the daughter's interests and described

him as "patient, courteous [and] respectful."   Hagan

characterized the opinion the mother articulated of the father

as "about as low an opinion as I've heard expressed.    It was

bitter and hostile.   All on the theory of errors of omission

rather than commission."   Hagan further described that encounter

stating, "it's about as emotionally charged an atmosphere as

I've ever had in my office in sixteen years."   The trial court

reinstated the father's visitation rights.

     On May 19, 1999, the trial court held a show cause/review

hearing based on failure to comply with the court-ordered

visitation.   The judge stated from the outset, "Let me be very

clear about this.   If the information I am to receive from [the

daughter] is suggestive of the fact that Ms. Cintron has

interfered with Mr. Long's ability to start a relationship with

this child, I'm going to transfer custody today.   That's the

bottom line on this."

     The evidence revealed that the daughter had, when she was

six or seven years old, asked the mother to talk to the father

to arrange visitation at least three times, all of which the

mother refused.   Further, the trial court found that the

daughter's attitude had "vacillated 180 degrees since the last

time she was [there]" when she told the judge that she had "no

reservations whatsoever about seeing her dad, re-establishing a

relationship with him, and spending time with him."     The court

                               - 4 -
found her evasive in her answers and attributed the daughter's

sudden refusal to cooperate with the visitation to the mother's

efforts to undermine the establishment of any relationship

between the father and the daughter.     The judge noted that the

mother could be held in contempt and then stated, "I'm going to

put the parties back into visitation, and I'm going to tell

them, point blank:   If there are any other further violations of

the order, somebody is going to jail."     The court ordered a new

schedule for visitation.

     On June 14, 1999, in another show cause/review hearing, the

evidence revealed that the daughter continued to refuse to visit

with the father.    Before the mother testified, the judge stated,

"It's obvious we're being held hostage by a 13-year-old child,

and I've got to ask myself who's the parent, and who's the

child?"   He went on to warn the mother,

                I'm not going to be held hostage by a
           13-year-old child.     Perhaps Ms. Cintron
           wants to allow herself to be held hostage by
           a 13-year-old child, and I'm assuming, for
           sake of this discussion, that Ms. Cintron is
           without blame in this.    If she is without
           blame, then we've got a 13-year-old child
           that's calling the shots, over whom Ms.
           Cintron has no control. I'm not going to be
           held hostage.

                *      *     *     *       *    *     *

                This [c]ourt's orders are not going to
           be thwarted by Ms. Cintron's lack of
           parenting abilities to control a 13-year-old
           child.




                                 - 5 -
The trial court found that the mother was doing nothing to

encourage visitation, only paying the court's order "lip

service" and was not sanctioning the daughter or implementing

consequences for her disobedience.      The trial court determined

that the change in the child's attitude indicated either a lack

of the mother's parental abilities or the mother's undue

influence.   The judge stated, "I'm not going to be held hostage

by a 13-year-old girl.   Ms. Cintron chooses to he held hostage

by a 13-year-old girl.   I'm not going to be.    She's either going

to go visit with her dad, or she's going to live with her dad.

And you can tell her that.   And that's the choice she’s got."

The court noted that, "I'm just not playing a game with a

13-year-old."   Before a new visitation schedule was implemented,

the court again stated, "I'm not going to play with a

13-year-old, and I'm not going to be held hostage by her," "[the

daughter]'s had the opportunity [to comply with the order] . . .

[, a]nd quite frankly, she's been playing fast and loose with

this, and I don't have the patience for it . . . as I've said

repeatedly, I'm not going to be held hostage by a 13-year-old

little girl[,] I'm not going to do it" and "I really don't have

time to be playing a game with a 13-year-old little girl."

     On August 13, 1999, the court again held a show

cause/review hearing.    The father testified that approximately

95% of the visitation schedule had not been completed and that

the daughter threatened to run away.     Dr. Marie Brown, based on

                                - 6 -
her home visits and telephone conversations with the daughter,

the mother and the father, testified that the mother had a

"verbally abusive and physically confrontational episode with

the father."   Brown testified that she suspected the mother to

have "issues about the visitation."    The father was described as

"respectful," "cooperative" and "pleasant."    Brown recounted an

episode where the daughter was verbally abusive to the father,

calling him "a prick" and telling him to "go to hell."     Brown

stated that "in thirty years of clinical practice, [she had]

never [seen] such flagrant disregard for the court system," that

the court was "made into a mockery" and recommended giving

custody to the father and that the daughter be sent to boarding

school to figure out her identity.     The evidence further

revealed that during the visitations, the daughter would stay in

her room and "pout."

     Before talking with the daughter in chambers, the trial

court judge noted that it "w[ould] be as fruitless as the last

time" and went on to state, "We have a thirteen-year-old child

who is calling the shots here."   After meeting with the

daughter, the court noted its observations, stating, "I am not

going to be manipulated by a thirteen-year-old.    She has

manipulated Mom.   She is trying to manipulate Dad.   She has

manipulated everyone with whom she has come into contact."      The

court noted, "I have no intentions of leaving that child with

Ms. Cintron.   I'm going to change custody.   If the child wants

                               - 7 -
to run away, that's Mr. Long's problem.     He's going to have to

deal with that."

     The trial court found that Dr. Brown's testimony was "a

carbon copy" of what was heard from Dr. Hagan six months

earlier, that it had doubts about the mother's parenting

abilities and that it did not find the daughter's testimony

credible.   The mother was found to be in contempt.    Custody was

transferred to the father immediately, and the mother was

instructed to pay the father child support in accordance with

the guidelines.

                   II.   SUBJECT MATTER JURISDICTION

     Mother claims that the trial court's order of September 9,

1999 granting the father custody of the daughter is void for

lack of subject matter jurisdiction.     Mother argues that since

the trial court acquired jurisdiction solely by virtue of an

appealed visitation petition, and father's custody petition was

filed for the first time in the trial court after the appeal

hearing, the trial court did not have original jurisdiction to

entertain the custody petition filed for the first time in its

court.   According to appellant, Code § 16.1-241(A) vests the

juvenile and domestic relations district court with exclusive

original jurisdiction of all cases involving custody, visitation

and support of minor children.

     Code § 16.1-244, however, states that the jurisdiction

granted to juvenile courts shall not "deprive any other court of

                                 - 8 -
the concurrent jurisdiction . . . to determine the custody,

guardianship, visitation or support of children when such

custody, guardianship, visitation or support is incidental to

determination of cause pending in such courts."   Contrary to the

mother's assertions, custody was incidental to visitation in

this case and the circuit court had subject matter jurisdiction

to transfer custody.

                            III.     CUSTODY

     When determining which custody arrangement is in the best

interests of a child, the trial court is required to consider

the evidence presented as it relates to the factors listed in

Code § 20-124.3.   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).   The trial court's findings,

however, must have some foundation based on the evidence in the

record, and if the trial court's findings lack evidentiary

support, its determination of child custody is an abuse of

discretion.   Cf. Trivett v. Trivett, 7 Va. App. 148, 153-54, 371

S.E.2d 560, 563 (1988); Woolley v. Woolley, 3 Va. App. 337, 345,

349 S.E.2d 422, 426 (1986).   The trial court is vested with

broad discretion to safeguard and promote the child's interests,

and its decision will not be reversed unless plainly wrong or



                                   - 9 -
without evidence to support it.     See Farley v. Farley, 9 Va.

App. 326, 327-28, 387 S.E.2d 794, 795 (1990).

     This case implicates Code § 20-108 which states in

pertinent part, "[t]he intentional withholding of visitation of

a child from the other parent without just cause may constitute

a material change in circumstances justifying a change of

custody in the discretion of the court."    This provision simply

means that the first prong of the test articulated in Keel v.

Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983), may be

satisfied by a finding of intentional withholding of visitation.

This provision does not mean that the second prong of the Keel

test dealing with "best interests of the child" has been removed

from the court's consideration.     See also Code § 20-124.3.

     The mother argues that the trial court abused its

discretion by changing custody of the daughter from her to the

father.    We agree.   The trial judge explained his ruling as

follows:

            I don't find that Ms. Cintron has in good
            faith tried to comply with the orders of
            this [c]ourt. I find she is in contempt of
            the orders of this [c]ourt, and I have
            serious questions about her individual
            parenting ability. I said this before and
            I'll say it again, she's either in willful
            violation of this order or she is being
            controlled by a thirteen-year-old girl.

                 I spoke with [the daughter], counsel
            each questioned [the daughter], and quite
            frankly, I don't put a great deal of
            credibility in anything that [the daughter]
            had to say. I think [the daughter] was

                                - 10 -
          delivering a message, and I seriously doubt
          her ability to provide this [c]ourt with an
          informed judgment as to the status of her
          role in the relationship with Ms. Cintron
          and Mr. Long.

               I'm tired of having this case come back
          and forth here. We have probably been in
          court once a month since March. I don't
          know what the answer to this is. I can't
          force a thirteen-year-old into a visitation,
          and I realize that.

               I feel like I have no choice at this
          point than to allow Mr. Long to exercise his
          parenting abilities, to see if there is
          better control. I am transferring custody
          of this child to Mr. Long.

After awarding custody to the father, the trial court stated,

               Mr. Long, I don't know what you are
          going to do with this little girl. I really
          don't. She is out of control. She has been
          oppositional. She's been obviously
          indoctrinated for a long period of time that
          you haven't dealt with incarnate [sic].

               I don't know what the answer is. I
          would hope that you will rely on the advice
          of the professionals who might be in a
          better position to give you the guidance
          that you need, because I can give you no
          guidance.

     The trial court's stated reason for the decision and our

review of the evidence in the record reveal that noncompliance

with the court's orders rather than consideration of the factors

in Code § 20-124.3 served as the basis for the court's transfer

of custody.   Our review of the record demonstrates that the

trial court, amidst its frustration with the daughter's

consistent failure to comply with the court-ordered visitation


                              - 11 -
schedule and the mother's failure to sanction the daughter for

such disobedience, responded by removing the child from the

mother, her custodian since birth, and placing the

thirteen-year-old girl with her sixty-four-year-old father who

was a virtual stranger to her and with whom she hardly had the

semblance of a relationship.

     Although we are sympathetic to the frustration of the trial

court in dealing with this difficult situation, "[i]n matters

concerning custody and visitation, the welfare and best

interests of the child are the 'primary, paramount, and

controlling consideration[s].'"   Kogon v. Ulerick, 12 Va. App.

595, 596, 405 S.E.2d 441, 442 (1991) (quoting Mullen v. Mullen,

188 Va. 259, 269, 49 S.E.2d 349, 354 (1948)).   Our Supreme Court

has noted that "[o]ur first and foremost concern here, as in all

child custody cases, is the welfare of the child.    All other

matters, including the misconduct of the [mother] in violating

court orders, must necessarily be subordinate."     Brown v.

Kittle, 225 Va. 451, 457, 303 S.E.2d 864, 868 (1983).     "The

custody of minor children in such controversies is never to be

given to one parent to punish the other."   Rowlee v. Rowlee, 211

Va. 689, 690, 179 S.E.2d 461, 462 (1971).

     It is apparent that the basis for the trial court's

"serious questions" about the mother's parenting abilities were

the child's consistent refusal to comply with the visitation

schedule and the mother's failure to correct the child's

                               - 12 -
behavior, namely by use of sanctions.    Although the trial court

criticized the mother for failing to use sanctions to achieve

compliance, the trial court did not use sanctions either.     Only

after custody was transferred was mother held in contempt and

even then, the 30-day sentence was suspended in its entirety.

        Additionally, there was no evidence that the child had

adjustment problems in other areas of her life.    In fact, until

this litigation the child participated in various athletic

activities, dance classes, cheerleading, and performed well,

both academically and socially, in school.    She was not in any

trouble with authority figures and was not running away from

home.

        Because the record includes transcriptions of proceedings

after the transfer of custody, we are aware that the trial

court's prediction that the child would run away as a response

to the transfer of custody came true.    Additionally, she was

hospitalized in a psychiatric hospital and thereafter, upon

release, was enrolled in a boarding school some distance from

her home.

        This case does not involve a custody determination between

biological parents who lived together and jointly raised a child

until a recent separation.    Similarly, this case does not

involve a long separation of biological parents with a history

of continuous visitation by the noncustodial parent.    Rather,

this case involves unmarried biological parents who never lived

                                - 13 -
with one another, never jointly parented the child, and a

thirteen-year-old girl with whom the father had virtually no

relationship.   On the facts of this case, it was an abuse of

discretion to transfer legal custody of this thirteen-year-old

girl to her father who was essentially a stranger to her.

                  IV.   ATTORNEY'S FEES AND COSTS

     We find no basis for the award of attorney's fees and costs

on appeal.

                           V.   CONCLUSION

     Accordingly, we reverse the order changing custody of the

daughter from the mother to the father and remand to the trial

court for entry of an order consistent with this opinion and for

further proceedings as necessary.

                                                         Reversed.




                                - 14 -
Coleman, J., dissenting.

     The bond between a parent and child is one of the strongest

recognized in the law.   Although the father, David Long, and

daughter, Christan Cintron, had only occasional and sporadic

visitations since her birth, the trial judge was correct in

recognizing, in my opinion, that the best interest of the child,

which is always the paramount concern in a child custody

dispute, would be served by encouraging and promoting a

relationship between father and daughter, even over the

resistance and objection of the mother.   Thus, I respectfully

disagree with the majority that the trial judge abused his

discretion in ordering that custody of the parties'

thirteen-year-old daughter be transferred to the father.

     The trial judge in this case was confronted with a

situation in which the mother was persistently frustrating and

resisting the court-ordered visitation between the daughter and

father and, consequently, was influencing and supporting the

daughter's unwillingness and resistance to the visitation.    The

trial court's decision to change custody was the most reasonable

and viable remedy that the trial judge had available to effect

the desired result and overcome the mother's and child's

resistance and disobedience to the court's visitation order.

Admittedly, the child had done well under the single parenting

of the mother; nevertheless, in my opinion, the trial court did

not err in finding that a material change of circumstance had

                              - 15 -
occurred, which justified the trial judge's

remedy-of-last-resort while at the same time addressing the

mother's and child's continued and persistent disobedience to

the court's orders.   I would affirm the trial judge.

       Admittedly, this case presents a difficult situation in

which a father is being awarded custody of his thirteen-year-old

daughter when he has only occasionally visited with his daughter

since her birth and has no established close relationship with

her.   Apparently, during the child's early years, the father did

not attempt to establish a relationship with her, at least in

part, because of the mother's hostile attitude and lack of

cooperation.   While the record does not fully explain the

reasons for the mother's attitude, it may well be that past

events between the parents justified a level of resentment and

hostility from the mother toward the father.   For whatever

reason, the father did not pursue legal action in order to

establish a relationship with his daughter until the child

reached an age that she could exercise some judgment and

volition.   However, when the child was six or seven years old,

she had asked the mother to arrange visitation with her father,

but the mother refused.   Although the father occasionally,

albeit sporadically, visited his daughter over the years, in

November 1997, he sought court-ordered visitation.   At one point

during the two years of hearings regarding visitation, the child

told the trial judge that she had "no reservations whatsoever

                               - 16 -
about seeing her father, re-establishing a relationship with

him, and spending time with him."    The trial court found that

the father was a fit person to have a parental relationship with

the child and the evidence showed that he was "respectful,"

"cooperative," and "pleasant."   Although the court ordered

visitation between the father and daughter, the mother has not

cooperated in bringing about the visitation and has not

encouraged the cooperation of the child.   The court found that

the child's attitude and resistance was due to the influence and

lack of cooperation of the mother.

     The trial court's efforts to effectuate a relationship

between the father and daughter through visitation, and before

resorting to a change of custody, are well documented in the

record.   The trial court first undertook to initiate the

relationship by establishing visitation rights with the father

and daughter and appointing a clinical psychologist to work with

the parents and child to facilitate the visitation and deal with

the mother's hostility and daughter's lack of cooperation.    A

second psychologist became involved to further assist in

bringing about a relationship between the father and daughter.

According to one of the mental health experts, the mother's

attitude toward the father was "about as low an opinion as I've

heard expressed.   It was bitter and hostile . . . it's about as

emotionally charged an atmosphere as I've ever had in my office

in sixteen years."   One of the psychologists testified that the

                              - 17 -
mother exerted great influence over the child and that she was

not supporting the child's re-introduction to the father nor the

court-ordered visitation.    In a further effort to enforce its

visitation decree, the court attempted to exercise its contempt

powers against the mother.   After three show cause hearings, in

which the court threatened the mother with contempt, the court

eventually held her in contempt for violating its visitation

order when it finally awarded custody to the father.    In this

vein, the majority suggests that the trial court might have more

forcefully pursued contempt in order to enforce its visitation

decree rather than order a change in custody.   However, in my

opinion, that decision was within the trial court's discretion.

I believe it was a proper exercise of the court's discretion to

pursue that avenue by awarding custody to the father.   Holding

the mother in contempt and fining or imprisoning her would have

served only to exacerbate further the hostilities between the

parents and to frustrate further the court's efforts to bring

the child and father together.

     I am not insensitive to the fact that the mother has been

the sole caretaker and provider for this young girl from birth

until her teenage years.    However, the trial court was not

unmindful that in large measure the child's unwillingness to

visit with her father was due to the mother's opposition and

unwillingness to allow the father to have a relationship with

the child.

                               - 18 -
     The best interest of the child is always the guiding

standard for all custody determinations and that decision is to

be made after consideration of the factors in Code § 20-124.3.

The trial court has broad discretion in making a custody

determination that will serve the child's best interest, and we

will not reverse that decision unless plainly wrong or without

evidence to support it.    See Code § 8.01-680; Brown v. Brown,

218 Va. 196, 237 S.E.2d 89 (1977).      Code § 20-108 provides,

"[t]he intentional withholding of visitation of a child from the

other parent . . . may constitute a material change in

circumstances justifying a change of custody in the discretion

of the court."   By enacting this provision in Code § 20-108, the

General Assembly expressly acknowledged and sanctioned the

remedy that the trial judge resorted to in this difficult

situation.   Where one parent disobeys and attempts to frustrate

the order of a court and the rights of a parent to child

visitation, the most viable solution to deal with a parent's

recalcitrance and not to reinforce the parent's unwillingness to

cooperate with a visitation plan may well be to change custody,

as the trial judge did in this case.     That is the difficult

decision which a trial judge must make.     In my view, the

majority's holding seriously frustrates the efforts of a trial

court to effectuate its decision to establish a visitation

relationship between a parent and child when deemed to be in the

child's best interest.    The majority's holding severely limits

                               - 19 -
or disregards the power granted to a trial court by Code

§ 20-108 to enforce its visitation orders.   Although the trial

court's change of custody from the mother to the father may be

considered a bold measure to enforce visitation, I do not see

that such measure was an abuse of discretion.   I would affirm

the trial court, therefore, I dissent from the majority's

decision.




                             - 20 -
