Piatt v. Piatt

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker and Annunziata
Argued at Alexandria, Virginia

DONNA M. PIATT
OPINION BY
v. Record No. 0410-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 26, 1998
JOHN PIATT

FROM THE CIRCUIT COURT OF STAFFORD COUNTY
William G. Plummer, Judge Designate
Cheryl K. Brunner (Cheryl K. Brunner, P.C.,
on briefs), for appellant.

Timothy T. Szabo (Szabo, Zelnick & Erickson,
P.C., on brief), for appellee.

Amicus Curiae: National Center for Lesbian
Rights (Kathryn D. Kendell; Shannon Minter;
Robert F. Suarez, on brief), for appellant.

Donna M. Piatt (wife) appeals the trial court's order

granting joint custody of the parties' child but awarding John

Piatt (husband) primary physical custody. Wife contends the

trial court erroneously: (1) treated her post-separation sexual

conduct differently from husband's post-separation sexual

conduct; (2) failed to make findings regarding the statutory
1
factors relating to child custody; (3) ruled on the
admissibility of certain evidence; and (4) employed a conclusive

1
In her brief, wife attempts to enlarge the issues on appeal
to encompass a claim that the evidence was insufficient to
support the court's ruling. We limit our review to the questions
presented by wife. See Carbaugh v. Solem, 225 Va. 310, 312 &
n.*, 302 S.E.2d 33, 34 & n.* (1983). This Court, as well as the
opposing party, must be able to rely on a party's statement of
the questions presented. See, e.g., Rule 5A:25(d).
presumption that homosexual parents are harmful to their

children. For the following reasons, we affirm.

I.

Under familiar principles, we view the evidence in the light

most favorable to husband, the party prevailing below. See

Wilson v. Wilson, 12 Va. App. 1251, 1254, 408 S.E.2d 576, 578

(1991). Wife and husband were married in July 1989, and their

child was born on January 13, 1993. Both parents worked, and

child care was provided by Tara Angyal, who is a professional

child care provider and a friend of wife's, Sharon Piatt, who is

husband's sister-in-law, and both grandmothers. In December

1994, the parties separated while remaining in the marital

domicile and entered into a settlement agreement under which they

cared for the child on alternate weekdays and weekends. During

this time, while husband was at work, his mother or Sharon Piatt

often supervised the child and her slightly older female cousin.

On wife's days with the child, child care was provided by Tara

Angyal and wife's mother while wife worked. After wife vacated

the marital residence in June 1996, the child spent alternate

weeks with her parents, an arrangement both parties agree was

unsatisfactory.
The parties' settlement agreement also provided that a

custody evaluation would be performed by Dr. Christopher D. Lane.

In his report, Dr. Lane recommended that the parties share joint

legal custody and that wife have primary physical custody with

2
liberal visitation for husband. Dr. Lane based his

recommendation in part on "the assessment of [wife's] parenting

abilities as being demonstrably broader in scope at this time

than those of Mr. Piatt and in the perceived greater

responsiveness of [the child] to her." Dr. Lane also testified

that his assessment of both parties' parenting skills and

commitment to parenting "would be consistent with a high level of

devotion to the care of [the] child."
At trial, both parents presented evidence concerning their

post-separation relationships with third parties. The evidence

established that husband had been involved in one heterosexual

relationship and wife had participated in two homosexual

relationships following the parties' separation. Husband and his

female friend testified that their involvement was serious, and

they planned marriage with the full support of husband's family.

Wife acknowledged that she was "experimenting" and still dealing

with the issue of her sexual orientation, and that as a result,

her relationship with her father had been damaged.

Dr. Lane filed a supplemental report in which he reviewed

several studies on the effects of homosexuality on children. He

testified that "[t]here seems to be no credible documentation of

damage to children" from being raised by a homosexual parent.

Dr. Lane also indicated that wife "is still struggling with her

own sexual identity," and her "family is reverberating" from her

"very angry estrangement from her father."

3
 The trial court ruled from the bench, finding that wife "is

still in a turmoil, which is continuing and has continued over

the last two years. This turmoil is as to her sexual orientation

and how her life should go forward." The court agreed with

Dr. Lane that "both parents have good parenting skills. They

both love their daughter, and their daughter loves both of them."

However, the trial court expressed doubt about the credibility

of wife's testimony and concluded:
I have to balance these things out. And
there is no easy answer, but I believe that
the father is better qualified at this point
to be the primary caretaker of the child. I
believe there is more stability in his
surroundings and in his home. There is
support on both sides of the family, but
there is probably a little bit more support
on the side of the father. . . .
I am going to make it joint custody,
because I do not want anybody to think that
they do not have a say in raising the child.
The primary custodian will be the father.

The trial court awarded joint legal custody of the child, with

husband having primary physical custody and wife having ten days

per month visitation plus vacations and alternate holidays.

II. Post-Separation Sexual Conduct

Wife contends the trial court erred in treating her two

post-separation relationships as having an adverse effect upon

the child, but not so treating husband's relationship. However,

the record discloses no finding that either party's

post-separation sexual behavior had an adverse effect upon the

child. Rather, the trial court treated the parties'

4
post-separation sexual behavior as evidence supporting its

conclusion that husband provided a more stable home environment

for the child. Consequently, wife's contention is without merit.

In determining child custody, a trial court is required to

"give primary consideration to the best interests of the child."

Code § 20-142.2(B). Because the trial court heard the evidence

at an ore tenus hearing, its decision "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).

In general, a court examines the sexual conduct of a parent

to determine whether it has had any adverse impact on the child. 2

See Brown v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977)

("in determining the best interest of the child, the court must

decide by considering all the facts, including what effect a

nonmarital relationship by a parent has on the child"). Here

both parents' relationships were facts for the trial court to

consider, but the record does not reflect that those

relationships provided the basis for the custody award.

The trial court referred to wife's post-separation sexual

2
This standard applies to both heterosexual and homosexual
conduct. See, e.g., Ford v. Ford, 14 Va. App. 551, 555, 419
S.E.2d 415, 418 (1992) (upholding custody award to homosexual
parent because the child was not exposed to the "illicit nature"
of the relationship); Sutherland v. Sutherland, 14 Va. App. 42,
414 S.E.2d 617 (1992) (upholding custody award to heterosexual
parent because the evidence did not show that the parent's sexual
conduct had an adverse effect on the children).

5
relationships and her "experimentation" not as having a direct

negative impact on the child, but as manifestations of wife's

inner "turmoil" and "lack of control." These characteristics

have a direct bearing on wife's ability to provide a stable home

environment and to "meet the emotional, intellectual and physical

needs of the child." Code § 20-124.3(3). See Bostick v.

Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319 (1996) (the

degree of stability of the home environment is a matter of

concern under Code § 20-124.3(3)).
The evidence supports the trial court's conclusion that

wife's home environment was less stable than husband's. The

record demonstrates that wife often left the child in the care of

others while she pursued recreational trips and activities. She

occasionally took the child with her without regard to the

child's bedtime or evening routine. Wife was unsure whether she

would remain in her condo after the one-year lease ended. She

dated several individuals and admitted to two sexual

relationships. Furthermore, wife's family relationships were

strained.

The court contrasted the stability of wife's home

environment with that provided by husband. The evidence shows

that husband developed a routine for the child. He maintained

his residence in the marital home, where the child had lived her

entire life. He was involved in a long-term relationship with

another woman and was planning for marriage. He had the full

6
support of his parents and his brother and sister-in-law. His

relatives provided day care for the child and her young cousin.

All of these facts led the trial court to conclude that,

while it was clear that neither parent was unfit, husband could

provide a more stable environment for the child. The trial court

recognized the commitment of both parents to the child by

ordering joint custody, and the physical custody arrangement

provided wife with liberal visitation. The parties acknowledged

that their previous shared custody arrangement failed. Credible

evidence supports the trial court's award of joint custody with

primary placement of the child with husband. 3

III. Consideration of Factors in Code § 20-124.3

In its final order, the trial court stated that it had

"considered each and every factor under § 20-124.3 of the Code of

Virginia, 1950, as amended." Wife contends the trial court

erroneously failed to make findings of fact with regard to each

of the statutory factors.

In determining the best interests of the child, a court must

consider all of the factors set out in Code § 20-124.3. Sargent

v. Sargent, 20 Va. App. 694, 701, 460 S.E.2d 596, 599 (1995). It

3
Wife also contends that the court's disparate treatment of
the parties' sexual conduct in the absence of evidence of an
adverse effect of that conduct gives rise to an inference of an
unconstitutional "conclusive presumption that homosexual parents
are harmful to their children." In light of our holding that the
trial court made no finding of adverse impact and examined the
parties' sexual behavior only as it related to the stability of
their homes, wife's contention is not supported by the record.

7
is well established that failure to consider all of the factors

is reversible error. See, e.g., Robinson v. Robinson, 5 Va. App.

222, 227, 361 S.E.2d 356, 358 (1987). A trial court need not,

however, "'quantify or elaborate exactly what weight or

consideration it has given to each of the statutory factors.'"

Sargent, 20 Va. App. at 702, 460 S.E.2d at 599 (quoting Woolley

v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 442, 426 (1986)). We

find no merit to wife's claim that the trial court must make

specific findings as to each statutory factor.
Wife also claims the court failed to consider the "age and

physical and mental condition of each parent" as required by Code

§ 20-124.3(2) by failing to give weight to Dr. Lane's report.

Wife's argument to the contrary, a trial court is not required to

accept the opinion of an expert. See McLane v. Commonwealth, 202

Va. 197, 205-06, 116 S.E.2d 274, 281 (1960). "It is well

established that the trier of fact ascertains [an expert]

witness' credibility, determines the weight to be given to their

testimony, and has the discretion to accept or reject any of the

witness' testimony." Street v. Street, 25 Va. App. 380, 387, 488

S.E.2d 665, 668 (1997) (en banc) (citing Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986)).

Thus, the trial court acted within its discretion when it

declined to follow Dr. Lane's recommendation.

IV. Evidentiary Issues

Wife contends the court erred in making a number of

8
evidentiary rulings. Given its responsibility to manage often

complex and hotly contested litigation, a trial court has broad

discretion to determine the admissibility of evidence. See

Langhorne v. Commonwealth, 13 Va. App. 97, 106, 409 S.E.2d 476,

482 (1991) (citing Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988)).

Wife argues the trial court arbitrarily excluded evidence

relevant to the factors outlined in Code § 20-124.3. Some of the

evidence to which wife refers was, in fact, not excluded. The

other evidence was excluded as irrelevant, too abstract, or

argumentative. "Evidence having rational probative value and

which adds force and effect to other evidence will be admitted

unless some other rule requires its exclusion." Peacock Buick v.

Durkin, 221 Va. 1133, 1136, 277 S.E.2d 225, 227 (1981) (citing

Levine v. Lynchburg, 156 Va. 1007, 1014, 159 S.E. 95, 97 (1931)).

After reviewing the excluded evidence, we conclude the trial

court properly exercised its discretion to exclude evidence which

it considered too far afield from the issues confronting the

court.

Wife claims the court's evidentiary rulings were tied to the

sexual orientation of the party offering the evidence or asking

the question. A litigant is denied due process if his or her

case is heard before a judge who harbors "'such bias or prejudice

as would deny [the litigant] a fair trial.'" Welsh v.
Commonwealth, 14 Va. App. 300, 314, 416 S.E.2d 451, 459 (1992)

9
(quoting Justus v. Commonwealth, 222 Va. 667, 673, 283 S.E.2d

905, 908 (1981)), aff'd, 246 Va. 337, 437 S.E.2d 914 (1993). The

trial judge made no statement that his rulings were based on

anything other than the rules of evidence. The fact that the

trial court made a number of evidentiary rulings adverse to wife,

without more, does not indicate the trial judge was biased

against her. See Stevens v. Commonwealth, 8 Va. App. 117, 123,

379 S.E.2d 469, 473 (1989) (finding no bias despite the fact that

the defendant lost 36 of 38 objections). The trial court's

evidentiary rulings were a proper exercise of its discretion and

showed no bias against wife.
Wife also argues the court erred in admitting a greeting

card as evidence, as well as in reading the card to determine

whether it contained hearsay. After husband attempted to

introduce the card, wife objected on the basis that the contents

of the card were hearsay. The court ruled, "If you are offering

it for the contents of the truthfulness of it, sustained." The

premise of wife's argument is incorrect. As the court's

statement makes plain, the trial court did not admit the card,

but ruled it inadmissible.

Wife's argument that the trial court erred by reading the

card also fails. First, the court had to read the card to rule

on its admissibility. Second, the trial court is presumed to

have excluded inadmissible evidence from its consideration, and

wife has offered nothing to rebut this presumption. See Adams v.

10
Adams, 233 Va. 422, 429, 357 S.E.2d 491, 495 (1987) (citing

Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157

(1981)). The trial court properly exercised its discretion in

ruling on the admissibility of the card.

For the foregoing reasons, we affirm.

Affirmed.

11
Annunziata, J., dissenting.

In my opinion, the trial judge's statements make clear that,

in awarding husband primary physical custody, he applied

different standards when evaluating the parties' post-separation

sexual conduct. Accordingly, I respectfully dissent. 4

Viewed in the light most favorable to husband, the record

shows that, during the period between the parties' separation in

December 1994 and the hearing in September 1996, husband was

involved in a relationship with one woman. Husband's

relationship began in October 1995, and continued through the

time of the hearing. Wife was involved in a relationship with a

woman from January 1995 to May 1995, and in a relationship with

another woman from May 1995 through the time of the hearing in

September 1996.
The trial judge's decision began with his statement that

wife was in a "turmoil" over her sexual orientation. Immediately

following this statement, the judge assessed wife's sexual

orientation and conduct:
She admits that she is experimenting
. . . . Within her homosexual side of this
4
The issue before us does not raise a question of the
sufficiency of the evidence in support of the court's custody
award, as is suggested by the majority. This issue was not
raised by either party. Instead, wife has limited her claim to
"[w]hether the trial court erred when it did not consider the
evidence of [husband's] post-separation adulterous relationship
in the same light as it considered [wife's] post-separation
adulterous relationship." While some review of the evidence is
necessary to understand the trial court's reasoning, a
sufficiency analysis ultimately does not answer the legal
question which is before us.

12
 experiment and turmoil, she has had two
admitted lovers in the last eighteen months;
one for four months, and one for over a year.
Speaking of it in the simplest manner,
and not so much whether it is homosexual or
heterosexual, this is promiscuity while still
married. It shows a level of lack of
control.

* * * * * * *

I think Dr. Lane was correct in saying
that both parents have good parenting skills.
They both love their daughter, and their
daughter loves both of them.

The judge then addressed husband's conduct:
On the other side, there is no evidence
that Mr. Piatt has had any involvement in
promiscuity, nor is there any evidence that
he has any lack of parenting skills. He
scored just about the same score she did on
that grounds. There is no question that he
has great love and care for his daughter, as
does the mother. The mother clearly loves
her daughter.

At this point, the judge made the statements quoted by the

majority:
I have to balance these things out. And
there is no easy answer, but I believe that
father is better qualified at this point to
be primary caretaker of the child. I believe
there is more stability in his surroundings
and in his home. There is support on both
sides of the family, but there is probably a
little bit more support on the side of the
father. I guess they both have used -- Both
parents have used the support of these
families over the years to help them.

The judge then awarded the parties joint legal custody and

awarded husband primary physical custody.

The trial judge's statements make clear that the factor he

13
believed he had to "balance . . . out" was the relative

"promiscuity" of wife and husband; his lengthy discussion of the

relative "promiscuity" of husband and wife provides the

antecedent for the trial judge's finding that husband had more

"stability" and makes clear that this finding meant more stable

sexual behavior.

The evidence shows, as wife contends, that the trial court

treated wife's sexual conduct differently from that of husband.

First, the trial court's finding that wife had engaged in

"promiscuity while still married," but that husband had not, is

not supported by the evidence. XII The Oxford English Dictionary

613 (2d ed. 1989), defines "promiscuous" as "indiscriminate in

sexual relations." Similarly, The Oxford Dictionary and

Thesaurus 1196 (1996), defines "promiscuous" as "having frequent

and diverse sexual relationships, esp. transient ones." Neither

party's relationships could reasonably be described from the

record as "indiscriminate," "frequent and diverse," or

"transient." In fact, the relationship in which wife was

involved at the time of the hearing had lasted five months longer

than husband's relationship. Wife's first relationship ended

before her second relationship began. The record contains no

evidence of other sexual relationships by either party. The

court's assignment of the label of "promiscuity" to wife's two

serial, monogamous relationships, to distinguish her conduct from

that of husband, is not supported by the evidence.

14
 The other facet of the court's distinction between wife's

two relationships and husband's relationship is that wife's

alleged promiscuity took place "while still married." At the

time of the hearing, however, both parties were still married.

The court had not issued a decree of divorce. Furthermore, no

evidence proved that either party had any extramarital

relationship prior to their separation. Thus, the court's

distinction between the parties on this basis has no foundation

in the evidence.
Second, the trial court's consideration of evidence of

wife's sexual conduct, relative to that of husband, as a factor

weighing against awarding her primary physical custody was

erroneous because the record contains no evidence of any effect

on the child. To the extent a finding of adverse effect on the

child is implicit in the court's decision, it is erroneous

because no evidence of such an effect was introduced on this

point. In Brown v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91

(1977), the Supreme Court of Virginia established the standard

for consideration of sexual conduct of a parent in child custody

decisions:
In all custody cases the controlling
consideration is always the child's welfare
and, in determining the best interests of the
child, the court must decide by considering
all the facts, including what effect a
nonmarital relationship by a parent has on
the child. The moral climate in which
children are to be raised is an important
consideration for the court in determining
custody . . . .

15
(Emphasis added).

As the majority concedes, this standard is applicable to

both heterosexual and homosexual sexual conduct. 5 The relevant

inquiry, therefore, is whether the evidence supports a finding as

to the "'effect a nonmarital relationship by a parent has on the

child.'" Brinkley v. Brinkley, 1 Va. App. 222, 224, 336 S.E.2d

901, 901 (1985) (quoting Brown, 218 Va. at 199, 237 S.E.2d at 91)

(emphasis omitted).
The record contains no evidence that wife's conduct,

comprised of two same-sex relationships in eighteen months, had

any effect on the parties' child. At the time of the hearing,

the child was less than four years old, and neither party

introduced evidence that the child was aware of wife's

relationships. Husband testified that, to his knowledge, wife

had never exposed the child to any intimate relationship with
5
See, e.g., Bottoms v. Bottoms, 249 Va. 410, 420, 457 S.E.2d
102, 108 (1995) (finding a lesbian mother unfit because "there is
proof in this case that the child has been harmed, at this young
age, by the conditions under which he lives when with the mother
for any extended period"); Roe v. Roe, 228 Va. 722, 728, 324
S.E.2d 691, 694 (1985) (changing custody under Brown standard
from homosexual father to heterosexual mother because of "the
impact of the father's conduct upon the child"); Doe v. Doe, 222
Va. 736, 746, 284 S.E.2d 799, 805 (1981) (reversing the
termination of a lesbian mother's parental rights because there
was no evidence that the mother's sexual conduct was "detrimental
to the child's welfare"); Ford v. Ford, 14 Va. App. 551, 555, 419
S.E.2d 415, 418 (1992) (upholding custody award to cohabiting
father because the child "was not exposed to the illicit nature
of her father's relationship" with his partner); Sutherland v.
Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992)
(upholding custody award to adulterous mother because, unlike
Brown, the evidence did not support "an adverse effect on at
least one of the children").

16
another woman. Indeed, the evidence affirmatively proved that no

displays of affection of a sexual nature took place between wife

and her partner in front of the child, that wife's partner did

not live at the wife's home, and that wife had no plans to have

her partner live in the home at any time. While the evidence

showed that wife was "struggling" with her sexual identity, no

evidence proved that the wife's "struggle" affected her ability

to parent the child. Indeed, the evidence is to the contrary.

Not only did expert testimony establish that wife's parenting

skills were "demonstrably broader in scope . . . than those of

[husband]," the court found the wife's parenting skills were

equal to those of the husband. The absence of evidence showing

any effect of wife's sexual conduct on the child supports wife's

contention that the trial judge applied different standards when

evaluating the parties' post-separation sexual conduct.
Finally, even if, as the majority states, the trial court

"treated the parties' post-separation sexual behavior [not as

evidence of its adverse effect on the child but] as evidence

supporting its conclusion that husband's home was a more stable

environment for the child," I would reverse. To the extent the

trial judge's conclusion about the greater stability of husband's

"surroundings" and "home" was premised on the parties' sexual

conduct, his conclusion is erroneous as having been based on the

application of different standards relating to this factor.

For the reasons outlined above, I would reverse and remand

17
for a redetermination of custody of the child. See Dooley v.

Dooley, 222 Va. 240, 247, 278 S.E.2d 865, 869 (1981) ("In view of

our conclusion that the charge of adultery has not been proven,

we must reverse the judgment of the trial court and remand the

case . . . for a redetermination of custody in light of our

holding on the issue of adultery . . . ."); Williams v. Williams,

24 Va. App. 778, 785, 485 S.E.2d 651, 654 (1997) ("Holding that

Code § 20-124.2(B) requires a finding that harm or detriment to a

child's health or welfare would result without visitation, before

visitation can be ordered over the unified objection of the

child's parents, we reverse and remand for reconsideration of

visitation in accord with this opinion.").

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