                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia


VICKIE STONEMAN
                                            MEMORANDUM OPINION * BY
v.   Record No. 0735-98-2                 JUDGE JAMES W. BENTON, JR.
                                                 APRIL 27, 1999
GREG STONEMAN


                FROM THE CIRCUIT COURT OF HANOVER COUNTY
                       Richard H.C. Taylor, Judge

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

          Carl J. Witmeyer, II (Chalkley & Whitmeyer,
          L.L.P., on brief), for appellee.


     This appeal arises from the trial judge's order granting Greg

Stoneman joint legal custody of three children born during his

previous marriage.    Vickie Stoneman, the children's mother,

contends the trial judge erred in granting the motion because the

circumstances had not materially changed and joint legal custody

was not in the best interests of the children.    She also contends

that the trial judge erred in ordering the continuing service of a

guardian ad litem.    For the reasons that follow, we affirm the

order.




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                                   I.

     Greg and Vickie Stoneman were divorced by a final decree

entered in the Circuit Court of Henrico County in 1994.   The

decree awarded the mother sole legal custody of the children and

remanded other custody related issues to the juvenile and domestic

relations district court.   Although the initial proceedings arose

in Henrico County, at some juncture the matter was apparently

referred to the courts in Hanover County, where, in 1996, the

father filed a petition in the juvenile and domestic relations

court.    At the request of the parties, a judge of the Hanover

County juvenile court entered a consent order continuing the

mother's sole custody of the children and allocating specific

visitation rights to the father.    The consent order also directed

a guardian ad litem to continue representing the interests of the

children and to assist the parties in "promot[ing] a more unified

living arrangement for the children when they are with each

party."

     Six months after entry of the consent order, the father

petitioned the juvenile court to order the parties to undergo

psychiatric evaluations and alleged in the petition that the

mother "has demonstrated unusual behavior."    The guardian ad litem

filed a report supporting the evaluations.    Over the mother's

objection, the judge ordered psychiatric evaluations and took

under advisement the father's motion to change custody.   After a

psychologist met with the parties and filed his "Psychological

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Evaluation" reports, the judge denied the father's motion for a

change in custody.

     The father appealed the decision to the circuit court.

Following an evidentiary hearing, the trial judge awarded the

parties joint legal custody of the children and ordered the

continued services of the guardian ad litem.    The mother appeals

that order.

                                II.

     After entry of a divorce decree containing child custody

provisions, a judge may "revise and alter such 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."    Code § 20-108.   The

standard is well established for decisions concerning change in

custody.

           A trial [judge], in determining whether a
           change of custody should be made, must apply
           a two-pronged test: (1) whether there has
           been a [material] change in circumstances
           since the most recent custody award; and (2)
           whether a change in custody would be in the
           best interests of the child. Whether a
           change of circumstances exists is a factual
           finding that will not be disturbed on appeal
           if the finding is supported by credible
           evidence.

Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)

(citation omitted).

     The record in this case clearly establishes the existence

of a material change in circumstances.   The guardian ad litem

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filed a four page report supporting the father's motion for

evaluations.   That report detailed the difficulties that the

parties had experienced in conducting themselves in accord with

the 1996 custody order.   In the portion of the report styled

"Recommendation," the guardian ad litem provided a substantial

basis to support the trial judge's finding that a change in

material circumstances occurred after entry of the consent

order.   Furthermore, the psychological evaluations that were

performed and filed as evidence, and the testimony of the

parties, provided a basis upon which the trial judge could have

found that the parties were unable to comply with the mandates

of the consent order.   Thus, credible evidence in the record

supports the finding of changed circumstances.

                               III.

     "In matters of custody, . . . 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).    "In

determining the best interests of the children, a court must

consider all the evidence and facts before it."     Venable v.

Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).

Furthermore, the principle is well established that "the trial

[judge's] decision, when based upon an ore tenus hearing, is

entitled to great weight and will not be disturbed unless

plainly wrong or without evidence to support it."     Id.



                               - 4 -
     At the evidentiary hearing, the trial judge heard testimony

concerning the nature of the parties' relationship with each

other and the effect of their relationship upon the decision

making process concerning their children.   The trial judge also

considered the psychological evaluations that had been prepared

as a result of the juvenile court judge's order, the report of

the guardian ad litem, and the oral recommendation of the

guardian ad litem.    The guardian ad litem, who had sought to

assist the parties pursuant to the consent order, stated that

"joint legal custody would help in this case."     Furthermore, the

evidence proved that both parties are fit custodians for the

children.

     The psychological evaluations, the guardian ad litem's

report, and the parties' testimony provide credible evidence to

support the trial judge's finding that the existing arrangement

was not satisfactory and did not provide the best environment

for the development of the children.    The trial judge concluded

that the children's best interests would be served by a custody

arrangement in which the father was apprised of child rearing

decisions and was able to have input prior to the implementation

of the decisions.    "[J]oint legal custody [is a status] where

both parents retain joint responsibility for the care and

control of the child and joint authority to make decisions

concerning the child even though the child's primary residence

may be with only one parent."   Code § 20-124.1.

                                - 5 -
     Upon this record, we conclude that the evidence supports

the finding that the change to joint legal custody would be in

the best interests of the children and would encourage the

parents to better share in the responsibilities of rearing their

children.

                               IV.

     The trial judge did not abuse his discretion in ordering

the guardian ad litem "to continue to monitor compliance with

. . . [the joint legal custody] Order."   In the October 28, 1996

consent order, the parties requested the appointment of the

guardian ad litem to represent the interests of the children and

to facilitate the parties in reaching "a more unified living

arrangement for the children when they are with each party."

Cf. Code § 16.1-266(D) (authorizing the judge of the juvenile

court to exercise discretion to appoint a guardian ad litem).

Based upon the guardian ad litem's role as initially agreed upon

by the parties, we cannot say that the trial judge abused his

discretion in finding that the continued presence of the

guardian ad litem was in the children's best interests and

consistent with the parties' intention as represented in the

consent order.

     Accordingly, we affirm the order.

                                                        Affirmed.




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