COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Alexandria, Virginia
COLLEEN N. BROWN
OPINION BY
v. Record No. 1830-98-4 JUDGE SAM W. COLEMAN III
AUGUST 31, 1999
MARK R. BROWN
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
Donald S. Caruthers, Jr. (Donald S.
Caruthers, Jr., P.C., on briefs), for
appellant.
Mark A. Barondess (Milissa R. Spring;
Sandground, Barondess, West & New, P.C., on
brief), for appellee.
Colleen N. Brown (mother) appeals from a ruling of the
trial court denying her request for a change in custody of the
two children born of her marriage to Mark R. Brown (father). On
appeal, she contends the court erroneously failed (1) to award
her sole legal custody or joint legal custody with father; and
(2) to order father to discontinue home-schooling the children.
For the reasons that follow, we disagree and affirm the ruling
of the trial court.
BACKGROUND
In accordance with familiar principles, we summarize the
evidence in the light most favorable to the prevailing party
below. See Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d
102, 105 (1995). The parties have two children, a daughter
Danielle born in 1987 and a son Christopher born in 1991. When
they divorced in 1995, they agreed upon joint legal and physical
custody of the children. Soon thereafter, a dispute arose about
Danielle's enrollment in Faith Christian School and mother's
shared custody when she planned to live with her paramour.
Following a hearing, the trial court awarded sole legal custody
to father but ruled that the parties would jointly decide where
to enroll the children in school.
When mother chose not to have the children attend Faith
Christian School, father decided to home-school the children, to
which mother objected. Following a hearing on August 21, 1996,
the trial court modified its earlier ruling to provide that
father had the authority to decide "where and in what manner the
parties' minor children are to be schooled." Father's
home-school curriculum was approved by the Director of Pupil
Services for the county.
On August 13, 1997, following one year of father's
home-schooling, mother moved for sole or joint legal custody of
the children, or alternatively, for an order directing that the
children attend a specific public elementary school. Mother
complained that father excluded her from participating in her
children's lives. Mother contended that the home-schooling, the
assigned homework, and the children's extra-curricular
activities detracted from her scheduled time with the children.
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She conceded, however, that she supported the children's
participation in some of the extra-curricular activities.
Father explained that although some of the extra-curricular
activities occurred during mother's scheduled time with the
children, typically the schedules were not established until
after enrollment in the activities. Further, father told the
children that he could only guarantee their attendance at these
activities during his scheduled time with them.
Although father initially denied mother's request to assist
in the home-schooling, he invited her to visit the classroom in
early 1997. On that occasion, the tension between the parents
detracted from the learning environment, and father determined
that in the future it would be best if mother were not present
during classroom time. According to his testimony, father
encouraged mother's participation in other home-schooling events
and suggested that her presence would benefit the children.
Mother conducted a field trip and held a monthly art class for
several children, including Danielle and Christopher. Father
testified that he encouraged mother to be involved with these
groups and explained that he initially had not included her name
on their home-schooling group's phone lists because mother
previously had aired their personal problems to other parents.
Father denied allegations that he forbade the children from
attending mother's church. Father testified that he merely
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wanted custody of them on Sundays to ensure that they attended
church on a regular basis and in a consistent program.
Mother testified that she ended her relationship with her
paramour following the court's April 1996 ruling and had no
contact with him since he moved out. She also testified that no
other man to whom she was not related had been "under my roof
while the children were in my custody."
Each party accused the other of inappropriate parenting.
As an example of alleged inappropriate discipline, mother
testified that father made Danielle stand in the corner on one
occasion for an hour and forty minutes until she apologized for
being disrespectful. Father offered testimony that mother
inappropriately involved the children in the parties' disputes.
Although the children expressed a desire to attend public
school, they also praised home-schooling and performed very well
in that environment.
Mother offered the expert testimony of Dr. Zuckerman, a
licensed clinical psychologist. Dr. Zuckerman supported
mother's complaints regarding the children's school environment
and its detrimental impact on her relationship with the
children. He opined that the children would be better off in a
school where both parents felt welcome and over which the
parental conflict was not an issue. However, Dr. Zuckerman
testified that he was not in a position to make a recommendation
regarding child custody.
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Father offered the testimony of Dr. Brian Ray, who
qualified as an expert in the field of education. He opined
that the children's "home-schooling is working very well." He
agreed that it was important for mother to be as involved as
possible in their schooling. He stated that home-schooling
would provide both parents more time to be with their children,
which is especially important in divorce situations, and that
home-schooling permitted father to integrate his personal
"religious philosophical view" into their education, both of
which were likely to help the children avoid the negative
aspects of peer pressure. Finally, he opined that the children
engaged in sufficient activities outside the home classroom to
develop necessary social skills.
ANALYSIS
A party seeking to modify an existing custody order bears
the burden of proving that a change in circumstances has
occurred since the last custody determination and that the
circumstances warrant a change of custody to promote the
children’s best interests. See Keel v. Keel, 225 Va. 606,
611-12, 303 S.E.2d 917, 921 (1983); see also Code § 20-124.2(B).
In deciding whether to modify a custody order, the trial court's
paramount concern must be the children’s best interests. See
Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795-96
(1990). However, the trial court has broad discretion in
determining what promotes the children's best interests. See
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Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d
10, 12 (1986).
Code § 20-124.3 specifies the factors a court "shall
consider" in determining the "best interests of a child for
. . . custody or visitation." Although the trial court must
examine all factors set out in Code § 20-124.3, "it 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)). 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.
See Alphin v. Alphin, 15 Va. App. 395, 405, 424 S.E.2d 572, 578
(1992).
Here, the trial court expressly considered the "best
interests" of the children. Contrary to mother's contention,
the court did not elevate the alleged right of father, the
children's legal custodian, to home-school the children over the
children's best interests. We cannot say on this record that
the evidence fails to support the trial court's decision to
maintain the status quo, by denying mother's request for sole or
joint legal custody or by refusing to prohibit father from
home-schooling the children. Although the parties exercised
joint physical custody, father had sole legal custody of the
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children, and mother bore the burden of proving a material
change in circumstances requiring a change in legal custody to
safeguard the best interests of the children.
The evidence, viewed in the light most favorable to father,
supports the trial court's finding that mother failed to meet
that burden. The children were performing well academically and
socially in a home-schooling program approved by Loudoun County.
Although initially resistant to mother's involvement in the
children's education, father made some effort to keep her
apprised of their progress and agreed that it would be
"beneficial for [mother] to come [to their class] on occasion."
The trial court found that the parties had made the children
"the battlefield," they could not communicate, and they could
not share any decision-making authority over the children.
Unable to find that father's home-schooling efforts were
inferior to the public school alternative, the trial court
determined that the children's best interests would be advanced
by continuing with the home-schooling.
We also find that the trial court's decision was not an
abuse of discretion, plainly wrong, or unsupported by the
evidence. In light of our clearly defined standard of review,
it is immaterial that the record, if viewed in the light most
favorable to the mother, may support the relief she seeks. The
trial court rather than the appellate court "ascertains a
witness' credibility, determines the weight to be given to [the
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witness'] testimony, and has the discretion to accept or reject
any of the witness' testimony." Street v. Street, 25 Va. App.
380, 388, 488 S.E.2d 665, 668 (1997) (en banc). The trial court
was entitled to reject the testimony of Dr. Zuckerman, who
opined that home-schooling was having a negative effect on the
children's education, in favor of the testimony of Dr. Ray, who
opined that "home-schooling is working very well" for the
parties' children. See id. at 387-89, 488 S.E.2d at 668-69.
Further, the court was not required to award mother sole or
joint legal custody or to prohibit home-schooling simply because
the children expressed a preference to attend public school.
"Although a child's preference 'should be considered and given
appropriate weight,' it does not control the custody
determination and is just one factor to be considered."
Sargent, 20 Va. App. at 702, 460 S.E.2d at 599 (quoting Bailes
v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986)).
Finally, contrary to mother's contention, the record,
viewed in the light most favorable to father, does not support
her contention that the trial court erroneously elevated
"stability and continuity" over the children's best interest.
The record establishes that the trial court considered other
statutory factors, including the needs and preferences of the
children, the relationship between the children and their
parents, and the parents' inability to communicate and
cooperate. Nevertheless, the evidence supports the trial
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court's finding that the children would benefit from a ruling
preserving stability and continuity and that such was in their
best interest. The issue in dispute here was the children's
education. The record established that Christopher's only
experience was in home-schooling, that both children had been
home-schooled for almost two years at the time of the hearing,
and that home-schooling permitted each parent to spend a greater
amount of time with the children. Accordingly, we find that the
trial court did not place undue emphasis on the children having
stability and continuity in their lives.
For the foregoing reasons, we affirm the trial court's
ruling. We deny father's request for an award of attorney's
fees and costs on appeal.
Affirmed.
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Elder, J., concurring, in part, and dissenting, in part.
I concur in the majority's affirmance of the trial court's
ruling declining to grant wife sole legal custody of the
parties' children. I also concur in its decision to deny
father's request for an award of attorney's fees and costs on
appeal. However, I respectfully dissent from the majority's
affirmance of the trial court's ruling on mother's request for
joint legal custody. Because I believe the trial court applied
an incorrect legal standard in denying mother's request for
joint legal custody, I would remand to the trial court for
further proceedings on that issue.
In resolving disputes between parents over the custody and
visitation of minor children, "the court shall give primary
consideration to the best interests of the child," Code
§ 20-124.2, considering the various factors outlined in Code
§ 20-124.3. In fashioning a custody arrangement that meets this
"best interests" standard, a court may award joint custody or
sole custody. See id. Sole custody "means that one person
retains responsibility for the care and control of [the
children] and has primary authority to make decisions concerning
the [children]." Code § 20-124.1. Joint custody has several
meanings. The court may award
(i) joint legal custody where both parents
retain joint responsibility for the care and
control of the [children] and joint
authority to make decisions concerning the
[children] even though the [children's]
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primary residence may be with only one
parent, (ii) joint physical custody where
both parents share physical and custodial
care of the [children] or (iii) any
combination of joint legal and joint
physical custody which the court deems to be
in the best interest of the [children].
Id. (emphasis added). The plain meaning of this statute permits
a court to apportion between the parents the ability to make
certain decisions regarding the children's upbringing in order
to effectuate the children's best interests. See Vasquez v.
Vasquez, 443 So. 2d 313, 314 (Fla. Ct. App. 1983) (upholding
court's order permitting father to choose children's school
based on state's "Shared Parental Responsibility Act," which
expressed preference for shared decision-making for divorced
parents in upbringing of children but provided that court "may
grant to one party the ultimate responsibility over specific
aspects of the child's welfare or may divide those aspects
between the parties based on the best interests of the child").
This best interests standard applies both to an initial
determination regarding custody and to any subsequent requests
for modification of custody. See Keel v. Keel, 225 Va. 606,
611, 303 S.E.2d 917, 920-21 (1983).
Once a court has ruled on matters relating
to the custody and care of minor children
. . . , the court retains jurisdiction
throughout the minority status of the child
involved. The court, in the exercise of its
sound discretion, may alter or change
custody . . . when subsequent events render
such action appropriate for the child's
welfare.
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Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d
10, 12 (1986) (citation omitted). Although the best interests
of the children remains the court's primary consideration, once
a custody order is in effect, a party seeking a change in
custody must prove both that a change in circumstances has
occurred since the last custody award and that a change in
custody is in the best interests of the children. See Keel, 225
Va. at 611, 303 S.E.2d at 920-21. Virginia has specifically
rejected the "narrow view that once custody is decided it should
stay decided absent 'gross changes that threaten harm' to the
children." Id. Compare Williams v. Williams, 256 Va. 19,
20-22, 501 S.E.2d 417, 417-18 (1998) (plurality opinion) (in
dispute between parents in "intact" family and alleged "person
with a legitimate interest" (grandparents) seeking visitation
with child under Code § 20−124.2, holding that parents'
fundamental constitutional right to raise child is acknowledged
in statute's requirement that a court "give due regard to the
primacy of the parent-child relationship" and that law requires
court to make threshold finding of "'actual harm to the child's
health or welfare without such visitation'" before reaching
"best interests" standard), and id. at 28-29, 30-33, 501 S.E.2d
at 421-22, 423-24 (Hassell and Kinser, J.J., dissenting in part
and concurring in judgment) (agreeing that parents'
constitutional right to raise child requires finding of harm
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before state may interfere with that right but asserting that
Code § 20-124.2 is unconstitutional because it contains no such
requirement), with Dotson v. Hylton, 29 Va. App. 635, 638-40,
513 S.E.2d 901, 903 (1999) (holding that, in dispute between
divorced parents over visitation for child's paternal
grandmother, Williams standard of harm to child does not govern
and court applies statutory standard for visitation by "person
with a legitimate interest," which requires only clear and
convincing proof that visitation serves best interests of
child).
Here, in ruling on the issue of education, the trial court
made conflicting observations. It observed that it had to
consider whether a particular type of education was in the
children's "best interest." However, it also relied heavily on
language in Martin v. Stephen, 937 P.2d 92 (Okla. 1997), to hold
that, absent "'most unusual conditions'" or "'compelling
circumstances,'" it "ha[d] no business . . . interfering" with
the legal custodian's "right to decide where the children are
educated."
As discussed above, Virginia's child custody statutes
specifically provide that the court must consider the best
interests of the children. See Code §§ 20-124.2, 20-124.3. The
mere fact that Code § 22.1-254.1 provides generally that
home-schooling of children by their parents, under certain
circumstances, "is an acceptable alternative form of education"
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does not alter the court's more specific statutory duty under
Code § 20-124.2 to make child custody decisions based on the
best interests of the children. Parents have a fundamental
constitutional right to make decisions regarding child-rearing,
and the state may not interfere with this right absent the
compelling state interest of protecting the child's health or
welfare. See, e.g., Williams, 256 Va. at 21, 501 S.E.2d at 418
(plurality opinion); id. at 28-29, 501 S.E.2d at 421-22 (Hassell
and Kinser, J.J., dissenting in part and concurring in result).
However, where the dispute over child-rearing is between two
parents involved in a custody dispute, it may be inherently
impossible to preserve that fundamental right with respect to
each parent simultaneously. Under those circumstances,
therefore, the statute provides that the best interests standard
controls. See Dotson, 29 Va. App. at 638-40, 513 S.E.2d at 903;
see also Clark v. Reiss, 831 S.W.2d 622, 624-25 (Ark. Ct. App.
1992) (upholding application of best interests test to prevent
custodian from home-schooling children in light of deficiencies
in specific program and impact of home-schooling on
non-custodial parent's visitation time and ability to
participate in their schooling); Bowman v. Bowman, 686 N.E.2d
921, 926-27 (Ind. Ct. App. 1997) (upholding application of best
interests test to the "particular circumstances" of that case as
ground for removing children from custody of parent who wished
to home-school them); King v. King, 638 N.Y.S.2d 980, 981 (N.Y.
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App. Div. 1996) (upholding application of best interests test to
award custody to children’s father where "manner in which
[mother] structured and conducted the home instruction . . . was
not ideal"); Elrod v. Elrod, 481 S.E.2d 108, 111 (N.C. Ct. App.
1997) (acknowledging best interests standard but noting that
father earlier had agreed to entry of order permitting
home-schooling and had shown no change of circumstances
permitting court to revisit home-schooling issue); In re Reiss,
632 N.E.2d 635, 640-42 (Ill. App. Ct. 1994) (citing statutory
"negative" best interests test permitting custodian to make
certain decisions unless they would "clearly be contrary to the
best interests of the child" and remanding for additional
evidence). But see Martin v. Stephen, 937 P.2d 92, 98-100
(Okla. 1997) (Simms, J., concurring) (noting that custodial
parent's "rights and obligations of custody are extensive and
operate against third parties, including the noncustodial
parent" such that custodial parent's decision to home-school
children is not grounds for change of custody unless it
"directly and adversely affected [children] in [a] material way
or posed a serious threat to their health, safety or welfare");
Rust v. Rust, 864 S.W.2d 52, 56-57 (Tenn. Ct. App. 1993)
(reciting best interests standard for custody decisions but
holding that once initial custody decision has been made,
custodial parent retains same fundamental autonomy over
childrearing decisions that married parents would have absent
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evidence that parent is no longer fit and, therefore, that
custodial parent may home-school child unless home-schooling
"poses a substantial danger to the child’s health or safety or
places a substantial social burden on him"). See generally J.
Bart McMahon, An Examination of the Non-Custodial Parent's Right
to Influence and Direct the Child's Education: What Happens
When the Custodial Parent Wants to Home Educate the Child, 33 U.
Louisville J. Fam. L. 723 (1995).
Because Code §§ 20-124.1 and 20-124.2 permit the court to
fashion any combination of joint legal custody which is in the
best interests of the children, the trial court had authority
under Virginia's statutory scheme to bifurcate the issues over
which mother and father have decision-making authority in this
case, giving mother the authority to make decisions regarding
the children's education while reserving to father the ability
to make all other decisions associated with legal custody.
Therefore, I would hold that the trial court erred in
concluding it could not revisit the child custody issue absent
unusual or compelling circumstances and would remand to the
trial court for further proceedings in keeping with the best
interests standard, including the option of joint legal custody
tailored to allow mother to choose where to educate the children
while reserving to father all other decisions associated with
legal custody.
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