COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
OSCAR GLENN GOODHAND
OPINION BY
v. Record No. 2525-00-4 JUDGE ROBERT J. HUMPHREYS
MARCH 5, 2002
DAWNIE KILDOO, F/K/A
DAWNIE GOODHAND
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
John M. Tran (Tobin, O'Connor & Ewing, on
briefs), for appellant.
Matthew W. Greene (Kevin E. Smith; Smith &
Greene, P.L.L.C., on brief), for appellee.
Oscar Glenn Goodhand ("father") appeals from the decision
of the Circuit Court of Fairfax County allowing his former wife,
Dawnie Kildoo ("mother"), to relocate to Arizona with the
parties' minor child. Father contends the trial court erred in
weighing the factors necessary to determine whether the
relocation was in the child's best interests, and in failing to
appropriately consider the harmful impact on the child which
would be caused by the relocation. We disagree and affirm the
decision of the trial court.
I. Background
We review the evidence in the light most favorable to
mother, the party prevailing below, and grant her all reasonable
inferences fairly deducible from the evidence viewed in that
light. 1 So viewed, the evidence presented in the trial court
established that father and mother were married on August 8,
1978. Three children were born of the marriage.
In 1998, the parties separated. They were granted a
divorce on June 30, 1999. Pursuant to an agreed custody order,
incorporated into the final decree of divorce, the parties
shared joint custody of their youngest child, Sydney. Mother
maintained primary physical custody during the school year, and
father maintained primary physical custody during Sydney's
summer vacation. Father also had custody of Sydney for several
weekends and holidays during the school year.
At the time of the divorce, the parties maintained a joint
dental practice located in McLean, Virginia. Due to the
parties' inability to work together after the divorce, mother
sold her portion of the practice. The terms of the sale
subjected mother to a non-compete clause encompassing a ten-mile
radius from the practice location. Mother had not relocated her
practice as of the time of the hearing.
In December of 1999, mother married Carew Papritz.
Papritz, who worked as a ranch foreman and as a writer in
1
See Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d
369, 372 (1999).
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Arizona, relocated to Virginia after the marriage. However,
after three months, he returned to his job in Arizona.
Subsequently, on July 10, 2000, mother filed a motion for change
of custody with the court, requesting that she be allowed to
relocate Sydney to Arizona for the following school year and
that father's existing visitation schedule be modified so that
Sydney could attend school without interruption.
During a two-day hearing, the trial court heard and
considered testimony from eleven witnesses and conducted an in
camera interview with Sydney. Testimony established that before
their separation, the parties had assumed assigned roles for the
care of their children. Mother was responsible for discipline,
hygiene, and basic structure in the home, as well as for
preparing most of the meals for the family. Father often fed
the children their breakfast and transported them to school. In
addition, father was very involved in the children's
extra-curricular activities. Father maintained his involvement
with these activities after the divorce.
Testimony also established that in November of 1999, the
parties agreed to send Sydney to a psychologist, Dr. Guy Van
Syckle. Dr. Van Syckle treated Sydney as often as once a week
from November 1999 up to the time of the hearing. He testified
that he observed Sydney to be a confident and well-adjusted
child. He further stated that Sydney wanted to spend more "fun
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time" with her mother, that she wanted to spend more time with
her father, and that she is "well-attached to both parents."
Dr. Van Syckle opined that it would be easier for Sydney to
relocate when she got older and testified that Sydney "wants to
stay here." He stated that he felt if Sydney was relocated, she
would feel like no one had heard her and that this would
"depress her." Finally, Dr. Van Sykle opined that a mere
physical separation between Sydney and one of her parents might
"potentially" hurt the bond between her and that particular
parent, but that it might not affect the relationship at all.
He further conceded that he had not completed a custody
evaluation, that he had no direct observation of the different
home situations, and that he had observed interactions with
Sydney and her parents on few occasions.
At the close of the evidence, the trial court articulated
its findings with respect to the factors enumerated in Code
§ 20-124.3 as follows:
Relocation cases . . . are still custody
cases. They are special custody cases, but
they are, I think, still informed [sic] by
Section 20-124.3. And I think the Court has
to consider each of the factors in that
section in making the decision.
The parties agree that there has been a
material change of circumstances, so the
question then becomes what is the best
interests of Sydney in determining this
custody issue. Of course, the Court is
well-aware that whatever its decision is, is
going to have a major impact on one of the
parents. But I think the cases are quite
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clear that what the Court has to consider is
the best interest of the child.
So going through the factors, factor number
one . . . I don't think that factor favors
one parent or the other . . . .
Factor two . . . [a]gain, I think that's a
neutral factor . . . .
The third factor . . . I think that factor
favors the mother, although it is very clear
that the father has very positive
involvement with the child's life. But I
think the mother - credibility of the
mother's testimony concerning the assessment
of the child's needs was more persuasive, I
think, in particular, in the evidence
concerning or the testimony concerning the
shared custody. The father thought it was
fine and would continue to be fine even
though he said change was something that
should be eliminated if possible, whereas
the mother testified that the shared custody
was - I think her term was horrible. And I
think she can assess the child's needs as to
that more accurately. So that factor favors
the mother.
The needs of the child, factor four . . .
[o]bviously, the child needs to continue to
have a relationship with both parents and
her siblings to the extent she
can . . . [b]ut again, the needs of the
child don't really favor one parent or the
other . . . .
The fifth factor . . . I think here the
evidence is persuasive to the Court that the
mother has been the primary care-giver
during this child's ten-year life, which is
not to say that the father hasn't played a
significant role. But the mother's role has
been, I think, primary. And I think that is
the one of the major factors that informed
the Court's decision.
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Sixth . . . I think on balance that its very
clear from the testimony of both the mother
and the father that they support the child's
relationship with the other parent, although
they are unable to work together it seems in
almost any way because of their difficulties
in communicating. But, again, that is a
neutral factor. And I don't find that
either parent has tried to alienate the
child or not supported the child's contact
and relationship with the other parent.
The relative willingness and demonstrated
ability of each parent to maintain a close
and continual relationship with the child.
Again, the evidence was quite clear that
both parents demonstrated that both as well
as any I have seen in any such custody
case . . . . The ability of each parent to
coordinate and resolve disputes was
conceded, although the father thought it was
better. But it was conceded in opening
statements that this is a real problem and
not a problem that is likely to be resolved.
Eighth . . . [t]he Court deemed the child to
be of reasonable intelligence in age and
experience to express such a preference.
. . . And in this factor, I think is a
factor that supports the father. Sydney
clearly wants to stay here in McLean. Some
of that preference, I believe, after talking
with her is as much apprehension or
unwillingness to leave the familiar
surroundings as it is a choice between mom
and dad . . . [a]nd I suspect without having
her tell me this, that if it was placed in
that stark term of having to choose between
mom and dad that Sydney's choice would be
much like Sophie's choice, an impossible
choice. But I do take that into
consideration in trying to make this
decision.
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But having gone through all of the factors,
I think the factors favor the mother in this
case. . . . 2
(Footnote added.)
II. Analysis
We note that when a court hears evidence at an ore tenus
hearing, its decision is entitled to great weight and will not
be disturbed on appeal unless plainly wrong or without evidence
to support it. 3 However, the burden is on the moving party to
show a right to the relief sought. 4 Thus, if the moving party
fails to meet his or her burden of proof, the trial court
maintains the discretion to deny a motion to modify custody. 5
The moving party must establish that modification of
custody is in the best interests of the child. 6
In Virginia, the law is clear that the "best
interests of the [child] controls the issue
of a change of custody or the issue of a
custodial parent moving the [child] to
another state." The court may consider a
2
Although the court did not indicate that it considered
factors nine and ten, evidence applicable to these factors was
presented during the hearing. In addition, neither party has
raised any issue concerning the failure of the court to
enunciate its findings pertaining to these factors on appeal.
3
Piatt v. Piatt, 27 Va. App. 426, 432, 499 S.E.2d 567, 570
(1998).
4
Hughes v. Gentry, 18 Va. App. 318, 326, 443 S.E.2d 448,
453 (1994).
5
See Bostick v. Bostick-Bennett, 23 Va. App. 527, 478
S.E.2d 319 (1996).
6
Id. at 535, 478 S.E.2d at 323.
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benefit to the parent from relocation only
if the move independently benefits the
[child]. 7
Accordingly,
[i]f the trial court finds that relocation
is not in the "best interests of the child,"
the trial court must deny the relocation
request. If maintaining the status quo is
in the "best interests of the child," the
court shall deny any requests to change
custody and order that the status quo be
maintained. 8
In reaching a decision on the "best interests of the
child," the court is guided by Code § 20-124.3. 9 Failure to
consider all the factors set out in Code § 20-124.3 is
reversible error. 10 However, "[a]s 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.'" 11 The trial court's evaluation
of the best interests of the child will not be disturbed on
appeal if the findings of the court are supported by credible
7
Cloutier v. Queen, 35 Va. App. 413, 430, 545 S.E.2d 574,
583 (2001) (quoting Simmons v. Simmons, 1 Va. App. 358, 362, 339
S.E.2d 198, 200 (1986)).
8
Id. at 423-24, 545 S.E.2d at 579.
9
Id. at 427, 545 S.E.2d at 581.
10
Id. at 425, 545 S.E.2d at 580.
11
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)) (emphasis added).
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evidence. 12 Father first contends that the trial court erred in
its weighing of the factor concerning Sydney's preference, and
in its findings on several of the remaining factors. We
disagree.
Despite father's contention to the contrary, it is clear
that the court did not ignore Sydney's preference to stay in
Virginia and/or to spend more time with her father. Indeed, the
court heard testimony concerning Sydney's preference and even
spoke with Sydney about her preference in chambers. The court
also heard the testimony and recommendations of Sydney's
psychologist. The court then carefully considered this
information, as well as Sydney's ability to competently express
her preference, and the motivation underlying it, in finding the
factor encompassing this aspect of the analysis to favor father.
Nevertheless, the wishes of the child are but one factor to be
considered in making the best interest determination. 13
Furthermore, it is well established that the trier of fact
ascertains witness credibility, determines the weight to be
given their testimony, and has the discretion to accept or
reject any of the witness' testimony. 14 Here, the record
12
See Walker v. Fagg, 11 Va. App. 581, 586, 400 S.E.2d 208,
211 (1991).
13
See Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826
(1986).
14
Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665,
668 (1997) (en banc).
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demonstrates that evidence was presented concerning the other
relevant factors, including mother and father's ability to
assess and meet Sydney's various needs, the various levels of
care each parent provided to Sydney, and the amenities available
to Sydney in both Virginia and Arizona. As stated above, it is
the trier of fact who determines the credibility and weight of
the evidence. Thus, despite father's contention otherwise, we
find no error in the court's findings in favor of mother on
these issues.
In addition, despite the parties' admitted difficulties in
communicating with one another concerning their daughter, we
find no evidence in the record to establish that mother
unreasonably denied father's access to Sydney. In fact, the
record reveals that mother adhered to the parties' custody order
concerning visitation and that she often granted father
visitation above and beyond that which was required by the
order. Thus, we likewise find no error in the court's
determination on this factor.
Father next contends that the trial court erred by
"mechanically" weighing the factors enunciated in Code
§ 20-124.3, and failing to consider the burden of proof.
Specifically, he states that the focus should be on the effect
the removal from her state of residence will have on the child
and not solely on the issue of who is the better person to have
custody. Accordingly, father contends that, in cases of shared
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or joint custody, the court should impose a presumption of harm
when a parent proposes to move a child a "far distance," in
cases of joint custody.
Although father is correct that it is the moving party who
bears the burden of proof in cases of a change in custody or
relocation, 15 we find no evidence in the record to support his
allegation that the trial court failed to consider the burden of
proof. Moreover, we find no authority for father's proposition
that there should be a presumption of harm in cases involving
relocation and joint or shared custody. To the contrary,
Virginia law simply requires the court to consider and weigh the
necessary factors in order to determine both whether a change in
custody is in the best interest of the child, and whether
relocation is in the best interest of the child. While it is
true that in relocation matters, the moving party also bears the
burden of proving that relocation will not cause a "substantial
impairment" to the relationship between the non-moving parent
and the child, we see no reference in the record, nor does
father point to any, that the court improperly placed the burden
on this issue and/or failed to consider it. Indeed, mother
called Dr. Van Syckle who testified as to the potential impact
of relocation on the relationship between Sydney and father,
opining that the move "might" hurt the bond, but also, that it
15
Cloutier, 35 Va. App. at 427, 545 S.E.2d at 581.
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might not affect the relationship at all. Thus, it is clear
that the trial court properly considered the issue.
Finally, father contends the trial court erred in finding
that the relocation would be in Sydney's best interests. Again,
we disagree. The strength of father's devotion to Sydney,
although laudable, does not alone determine her best interest. 16
Here, there was ample evidence presented from which the court
could consider both parents' devotion to their daughter, as well
as the necessary factors in determining what was ultimately in
her best interest. Finally, there was no evidence that the
benefits of father's relationship with Sydney could not be
maintained while she lived in Arizona during the school year.
In fact, the evidence presented suggested that the relationship
might not be affected at all.
Accordingly, since credible evidence supported the factual
determinations of the trial court, we find no grounds to reverse
the trial court's exercise of its discretionary authority.
Thus, the decision of the court is affirmed.
Affirmed.
16
See Scinaldi v. Scinaldi, 2 Va. App. 571, 575, 347 S.E.2d
149, 151 (1986).
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