COURT OF APPEALS OF VIRGINIA
Present: Judges McCullough, Decker and Senior Judge Felton
UNPUBLISHED
ELIZABETH A. FOSTER
MEMORANDUM OPINION*
v. Record No. 1508-15-2 PER CURIAM
FEBRUARY 23, 2016
RANDY A. FOSTER
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Paul W. Cella, Judge
(Debra L. Mallory; Taliaferro & Mallory, LLP, on brief), for
appellant.
No brief for appellee.
Elizabeth A. Foster (mother) appeals the custody ruling in a final decree of divorce. Mother
argues that the trial court erred by (1) finding that the fourth factor in Code § 20-124.3 was “the
most important factor, but failing to give due consideration ‘to other important relationships of the
child, including but not limited to siblings, peers, and extended family members;’” (2) failing to
consider the history of family abuse committed by Randy A. Foster (father); (3) failing to consider
father’s “failure to actively support the children’s contact and relationship with Mother, including
the Father unreasonably denying the Mother access to and visitation with the children;” (4) failing
to consider father’s twelve-hour work days and his thirty-six-hour per month commitment to the
local fire department; (5) “giving significant weight to an irrelevant factor, i.e. whether a parent
resides in someone else’s house, and finding it to be a negative factor against the Mother, but not
against the Father;” (6) failing to consider “the nature and extent of the Mother’s and the Father’s
respective support systems;” (7) “basing its decision on conclusions and opinions with no evidence
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
in the record to support them;” and (8) failing to consider father’s “failure to supervise his youngest
child, allowing the child to be exposed to a hazardous material.” Upon reviewing the record and
the opening brief, we conclude that this appeal is without merit. Accordingly, we summarily
affirm the decision of the trial court. See Rule 5A:27.
BACKGROUND
“On appeal, we view the evidence in the light most favorable to . . . the party prevailing
below.” D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 335, 610 S.E.2d 876, 882 (2005)
(citations omitted).
Mother and father married on July 9, 2009 and separated on March 16, 2013. The parties
have three minor children.
On April 26, 2013, mother filed a complaint for divorce. Father filed an answer and
cross-complaint. On June 18, 2013, the trial court entered a pendente lite order and awarded
joint legal custody to the parties and primary physical custody to the father.
On July 1, 2015, the parties appeared before the trial court for a final hearing. The parties
resolved most of their issues, but not custody and visitation. After hearing the evidence and
argument, the trial court awarded joint legal custody to the parties and primary physical custody
to father. The trial court noted that the children were doing well in school and had friends in
Dinwiddie, where they lived with father. It further emphasized that the children needed stability,
which they would have in father’s care. Mother lived in a different locality, and the children
would have to switch schools if they were to live with mother. The trial court found it was in the
children’s best interests to remain in father’s custody.
On September 16, 2015, the trial court entered the final decree of divorce and an
addendum to the final decree of divorce. This appeal followed.
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ANALYSIS
Mother appeals the trial court’s award of primary physical custody to father. “In matters
of custody, visitation, and related child care issues, 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). “[T]here is a presumption on appeal that the trial court thoroughly weighed all the
evidence, considered the statutory requirements, and made its determination based on the child’s
best interests.” D’Ambrosio, 45 Va. App. at 335, 610 S.E.2d at 882 (citing Brown v.
Spotsylvania Dep’t of Soc. Servs., 43 Va. App. 205, 211, 597 S.E.2d 214, 217 (2004)). “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.” Brown v. Brown, 30 Va. App. 532, 538, 518
S.E.2d 336, 338 (1999).
A court “shall consider” the following factors in Code § 20-124.3 to determine the “best
interests of a child” for custody or visitation:
1. The age and physical and mental condition of the child, giving
due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child,
giving due consideration to the positive involvement with the
child’s life, the ability to accurately assess and meet the emotional,
intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other
important relationships of the child, including but not limited to
siblings, peers and extended family members;
5. The role that each parent has played and will play in the future,
in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s
contact and relationship with the other parent, including whether a
parent has unreasonably denied the other parent access to or
visitation with the child;
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7. The relative willingness and demonstrated ability of each parent
to maintain a close and continuing relationship with the child, and
the ability of each parent to cooperate in and resolve disputes
regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the
child to be of reasonable intelligence, understanding, age and
experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228
or sexual abuse. If the court finds such a history, the court may
disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to
the determination.
Mother challenges the trial court’s ruling in light of several of the Code § 20-124.3
factors. When it issued its ruling, the trial court stated, “In terms of what is in the best interest of
the children, I think the fourth factor, the needs of the children, is really the most important one
because they’re the ones this is all about.” Mother argues that the trial court failed to consider
that father did not promote the children’s relationships with their extended family. There was
evidence that father was estranged from his paternal side of the family. Mother testified that
during her visitation time, she took the children to visit their paternal grandfather and other
paternal relatives, as well as her extended family. She explained that her family and father’s
paternal family were available to help her with the children. The trial court considered the
parties’ relationship with their extended families and noted that father’s “rupture with his father
is unfortunate.”
Mother also questions the trial court’s finding that the children were doing well in school,
but the parties testified about how well the children were doing. Mother herself testified that
oldest child was doing “fairly well in school” and later that the children were doing “just fine.”
The youngest child was not in school. The oldest child was in first grade, and the middle child
was in kindergarten.
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In addition to her challenge to the fourth factor, mother argues that the trial court erred in
its assessment of the ninth factor of Code § 20-124.3. She asserts that she presented evidence of
father’s temper and abuse. Mother relies on the fact that in November 2012, father was charged
with assault and battery of their child, who was three years old at the time. The Dinwiddie
County Juvenile and Domestic Relations District Court found that the facts were sufficient to
find guilt but deferred adjudication to November 27, 2014, at which time the charges were
dismissed. Mother also reiterates father’s arguments with his father to illustrate father’s anger.
She also testified about an incident when the youngest child was not yet two years old, and he
got diesel fuel on him at the fire station where father volunteered. Mother argued that father was
not adequately supervising the child and exposed him to “hazardous” materials.
Mother also contends the trial court did not consider the sixth factor of Code § 20-124.3.
Mother alleges that father did not allow her to speak with the children on a daily basis and denied
some of her requests for additional visitation. Father testified that mother speaks with the
children on the phone several times a week. He gave examples of how he has tried to work with
mother in providing her additional visitation, but she would not work with him. The trial court
disagreed with mother and said, “I don’t necessarily look at it as Mr. Foster trying to be a bully
or trying to see what the minimum is he can get away with. I look at it as being a lack of
agreement on both sides with some fault on both sides.”
Mother further asserts that the trial court erroneously considered the parties’ work
schedules. Both parties work shift work with rotating schedules.1 Father testified that he
previously worked day shift from 7:00 a.m. to 7:00 p.m. for two weeks, and then worked night
shift from 7:00 p.m. to 7:00 a.m. for two weeks. However, as of July 1, 2015, he permanently
1
They work four days one week and three days the next week, and they are off every
other weekend. Previously, wife was off when husband was at work, and husband was off when
wife was at work.
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works day shift. In addition, he volunteers with a local fire department for thirty-six hours per
month. Meanwhile, mother works a permanent night shift from 6:00 p.m. to 6:00 a.m. The trial
court held that it would not be in the children’s best interests “to uproot them and move them
somewhere else where the parent is working all night.” The trial court found that father’s new
work schedule will be “a big improvement and be very helpful.” Father’s shift was now
consistent and provided more stability.
In addition, mother contends the trial court erred by “giving significant weight to an
irrelevant factor, i.e. whether a parent resides in someone else’s house.” The trial court
considered both parents’ living situations and said, “With Ms. Foster working this schedule
where she works all day and all night and odd times living in someone else’s house, I don’t think
that overall environment would be in the children’s best interest.” Mother testified that she lived
with her aunt and uncle and their three boys. She explained that the parties’ daughter has her
own bedroom, and their two sons share a bedroom with one of her nephews. Father testified that
he lives with his girlfriend. The trial court’s comments do not indicate that it gave “significant
weight to an irrelevant factor;” instead, the trial court considered the parties’ living situations as
one part of its custody decision.
In issuing its ruling, the trial court emphasized that “the best interest of the children is the
paramount factor.” The trial court examined how the children were doing in father’s custody.
The evidence supports the trial court’s conclusion that they are doing well.
Despite mother’s arguments, a court “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)). The trial court clearly considered the children’s best interests
and focused on the stability that father offered them.
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“Where the record contains credible evidence in support of the findings made by that
court, we may not retry the facts or substitute our view of the facts for those of the trial court.”
Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992).
Although the record shows that Elizabeth Foster is a loving and devoted parent and that Randy
Foster is not without his flaws, it was for the trial court to weigh the evidence in its totality. We
will not substitute our judgment for that of the trial court so long as credible evidence supports
the judgment below. The evidence supports the trial court’s ruling. Accordingly, the trial court
did not err in awarding physical custody to father.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
Affirmed.
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Elizabeth A. Foster v. Randy A. Foster
Combined Opinion