                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and McClanahan
Argued at Salem, Virginia


DAPHNE BURKE RAMSEY, F/K/A
 DAPHNE M. CLEMENTS
                                          MEMORANDUM OPINION * BY
v.   Record No. 2988-02-3            JUDGE ELIZABETH A. McCLANAHAN
                                              JULY 22, 2003
ROBERT E. CLEMENTS


             FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                       Thomas H. Wood, Judge

             John C. Wirth (Victor M. Santos; Victor V.
             Ludwig; Nelson, McPherson, Summers &
             Santos, L.C., on brief), for appellant.

             No brief or argument for appellee.


     Daphne Burke Ramsey (mother) appeals the trial court's

decision denying her motion for a change in custody of her

daughter.   Custody had been granted to the child's father,

Robert E. Clements (father), through a separation agreement

incorporated into the parties' divorce decree.      Mother raises

two questions on appeal:    (1) whether the trial court erred in

refusing to apply the law applicable to custody disputes between

biological parents and a third party after finding that the

child was being raised "primarily" by her grandparents; and

(2) whether the trial court erred in its application of the law



     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
where one parent delegated custody of the child to a third

party.   For the reasons that follow, we affirm the judgment of

the trial court.

                           I.   Background

     The parties were married in 1994, and had one child

together in 1995.   After separating and filing for divorce in

April 1999, on May 26, 1999, in lieu of a custody hearing, the

parents executed a separation agreement in which they agreed

that father would have custody of the child.    On July 15, 1999,

mother filed a motion to set aside the agreement, which the

trial court denied.   The couple's divorce decree was entered in

February 2000, and it ordered custody to the father.

     On August 8, 2002, mother filed a motion seeking legal and

primary physical custody of the child and child support on the

grounds that there had been a material change in circumstances

and that it would be in the best interests of the child.    On

September 4, 2002, the trial court held a hearing on the motion,

where mother appeared in person and by counsel, and father

appeared pro se.    The record contains a written statement of the

facts.

     According to the statement of facts, father testified that

the child resides with him but spends, on average, one-half of

the time with her paternal grandparents.     He also testified that

the couple lived, with the grandparents for the first year of

the child's life and that the grandmother has provided daycare
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for the child since birth.   He stated that the grandmother had

been retrieving the child from the school bus and that the child

has a close relationship with her grandparents.   The

grandparents have been handling visitation between the child and

her mother because father and mother have confrontations when

they have contact.   Father's current wife corroborated father's

testimony that the child spends about one-half of her time with

her grandparents.    Father resides approximately five minutes

away from grandparents.

     Grandfather testified at hearing that the child spent every

night with father until January 2002, when an incident occurred

on the school bus that caused the child not to ride the school

bus thereafter.   Since that problem occurred, the child has been

spending most school nights with her grandparents.

     A private investigator employed by mother testified that on

twenty occasions between February and September 2002 he

conducted surveillance on the grandparents' dwelling and

observed that in each instance the child spent the night with

her grandparents.    He also stated that his surveillance occurred

during the school year, and did not include summer vacation.

     Mother testified that she has remarried and has a child

with her current husband.    She introduced a school record that

requires the child's custodian to initial that the child has

completed each evening's home reading assignments.   Father's


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initials do not appear on the assignment record after January

22, 2002.

     Every witness testified that the child is doing well

overall.    Further, she is performing well in school, is in good

physical health and has no apparent emotional problems.

     On October 15, 2002, the trial court entered an order

denying mother's motion for a change in custody.   The order

stated,

            the Court, having considered the evidence
            and the statutory provisions . . . finds, by
            a preponderance of the evidence, that
            [child] is primarily being raised by her
            grandparents; that she is doing well with
            her grandparents and that the best interest
            of the child would be served by
            continuing the present arrangement . . . .

The order also expanded mother's visitation rights beyond those

set forth in the parties' separation agreement.    This appeal on

custody followed.

                            II.   Analysis

     A trial court 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 child may require."   Code § 20-108;

Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 695-96

(1994).    The decision to modify a child custody order is

committed to the sound discretion of the trial court.      Id.   In

considering whether a change in custody is warranted, the trial

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court determines:   (1) whether there has been a material change

of circumstances since the most recent custody award; and

(2) whether a change in custody would be in the best interests

of the child.   Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917,

921 (1983); see also Visikides v. Derr, 3 Va. App. 69, 70, 348

S.E.2d 40, 41 (1986).   The parent seeking to obtain a transfer

of custody bears the burden to show a change in circumstances,

Hughes v. Gentry, 18 Va. App. 318, 322, 443 S.E.2d 448, 451

(1994), and that the change in custody is appropriate for the

welfare of the child.   Eichelberger v. Eichelberger, 2 Va. App.

409, 412, 345 S.E.2d 10, 11 (1986) (citations omitted).

     A trial court'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.     Venable

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

"'A trial court's determination of matters within its discretion

is reversible on appeal only for abuse of that discretion . . .

and a trial court's decision will not be set aside unless

plainly wrong or without evidence to support it.'"   Goldhamer v.

Cohen, 31 Va. App. 728, 734-35, 525 S.E.2d 599, 602 (2000)

(citations omitted).

     In matters concerning custody, the welfare and best

interests of the child are the "primary, paramount and

controlling considerations."   Kogon v. Ulerick, 12 Va. App. 595,

596, 405 S.E.2d 441, 442 (1991). The statute reflects the
                              - 5 -
importance placed upon securing the best interests of the child,

whose interests, in the final analysis, must be protected by the

courts.    Code § 20-124.2(B) ("In determining custody, the court

shall give primary consideration to the best interests of the

child."); see also Keel, 225 Va. at 612, 303 S.E.2d at 921.

        Mother argues that once the trial court found that the

grandparents were raising the child, it should have applied the

law applicable to custody disputes between biological parents

and a third party.    We disagree with this assertion.   Legal and

physical custody of the child remains with the father and has

not changed since the parties signed their separation agreement.

The grandparents are not a party to this matter.    Furthermore,

the grandparents had never been awarded legal custody or

visitation rights, nor were they awarded custody or visitation

rights in the trial court proceeding at issue here.      Therefore,

third party custody and visitation law does not apply to this

case.     See Code § 20-124.2(B); Williams v. Williams, 256 Va. 19,

501 S.E.2d 417 (1998).    The trial court correctly did not apply

it.

        The trial court considered changes in circumstances.   The

child is being primarily raised by her grandparents.     The

testimony indicates this is done for the child's convenience

during the school year.    Mother has remarried and has a child by

her current husband.    In spite of the changes, the trial court

found that the best interests of the child would be served by
                              - 6 -
leaving the child in the custody of her father.   We find no

abuse of discretion by the trial judge.   Because the evidence

supports the trial court's decision, we find no error and

affirm.

                                                        Affirmed.




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