COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
VIRGINIA PARKER BROWN
OPINION BY
v. Record No. 1937-98-2 JUDGE JOSEPH E. BAKER
OCTOBER 5, 1999
JOSEPH B. BURCH
and
DAVID KELLEY McNISH, III
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
Charles R. Jaeger for appellant.
Patricia M. Brady for appellee.
Virginia Parker Brown (Brown) appeals from a judgment of
the Circuit Court of the City of Charlottesville (circuit court)
that granted joint custody of Robert Parker McNish (Rob), then
age twelve, 1 to his stepfather, Joseph B. Burch (Burch), and to
his father, David Kelley McNish, III (McNish). 2 The circuit
court's order awarded physical custody of Rob to Burch. Brown
contends the circuit court never obtained personal jurisdiction
over her, that the circuit court abused its discretion when it
took Rob's testimony in camera without counsel present, and that
the court erred when it awarded physical custody of Rob to
1
Rob was born on April 22, 1986.
2
McNish and Burch are also collectively referred to herein
as "appellees."
Burch, with McNish being granted joint custody. Burch and
McNish assert on cross-appeal that the circuit court erred by
not awarding them attorneys' fees. See Rule 5A:21. For the
following reasons, we affirm the trial court.
I. Personal Jurisdiction
On April 17, 1992, appellees filed petitions in the
Charlottesville Juvenile and Domestic Relations District Court
(juvenile court) seeking permanent custody of Rob. 3 On July 1,
1992, Brown filed twenty-one separate motions in the juvenile
court in response to appellees' petitions. In addition to
motions challenging the juvenile court's in personam
jurisdiction, wherein Brown indicated that she was appearing
specially, Brown filed the following motions: 1) to transfer
venue to the City of Waynesboro (in response to Burch's and
McNish's petitions); 2) to disqualify the guardian ad litem (in
response to Burch's and McNish's petitions); 3) to disqualify
attorney Susan White from representing both Burch and McNish (in
response to Burch's and McNish's petitions); 4) for a
continuance (in response to Burch's and McNish's petitions); 5)
to strike Burch's petition on the ground that it sought
3
Burch and McNish had previously filed petitions for
temporary custody of Rob. In their April 17, 1992 petitions,
McNish and Burch asked that they be granted joint custody of
Rob, with Burch being awarded physical custody of the boy. The
juvenile court subsequently consolidated Burch's and McNish's
petitions.
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placement of Rob with a non-party to Burch's suit, namely
McNish; and 6) a demurrer to Burch's petition on the ground that
Burch was not Rob's natural father.
The juvenile court ruled that it had in personam
jurisdiction over Brown, and on August 12, 1992, the court
entered a final decree awarding joint custody of Rob to Burch
and McNish, with Rob's physical residency being with Burch.
Brown filed a timely appeal to this decree and re-asserted her
jurisdictional challenges in the circuit court. At a March 3,
1997 hearing, Brown testified that she was never served with
McNish's or Burch's custody petitions.
Brown concedes that she filed pleadings that went beyond
merely challenging the juvenile court's jurisdiction. She
asserts, however, that under Code § 8.01-277, she was entitled
to appear specially and generally, without waiving personal
jurisdiction. We disagree.
Under the common law, an appearance for the purpose of
taking advantage of the lack of process had to be by special
appearance, and the party had to expressly state that he or she
was appearing specially. See 2A Michie's Jurisprudence,
Appearances § 13 (1993 Repl.). The party had to "be particular
not to allow the appearance to assume such shape as [would]
admit the jurisdiction of the court." Burks Pleading and
Practice § 47, at 100 (4th ed. 1952).
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"If a defendant appears generally and defends on the
merits, or makes or accepts a motion for a continuance, or makes
any other motion which does not involve the question of the
court's jurisdiction, he thereby waives all defects in process
and the return thereon." Id. See Shepherd v. Starbuck, 118 Va.
682, 684, 88 S.E. 59, 60 (1916). "'Any action on the part of
defendant, except to object to the jurisdiction, which
recognizes the case as in court, will amount to a general
appearance.'" Maryland Casualty Co. v. Clintwood Bank, Inc.,
155 Va. 181, 186, 154 S.E. 492, 494 (1930) (citation omitted).
Enacted in 1977, Code § 8.01-277 modified the common law
rule by providing that "[a] person, upon whom process to answer
any action has been served, may take advantage of any defect in
the issuance, service or return thereof by a motion to quash
filed prior to or simultaneously with the filing of any pleading
to the merits." Because Code § 8.01-277 is in derogation of the
common law, it must be strictly construed. See Gilpin v. Joyce,
257 Va. 579, 582, 515 S.E.2d 124, 126 (1999).
In Gilpin, the plaintiff filed a personal injury lawsuit in
1996, but did not request service of process on the defendant.
More than one year later, the defendant filed a motion to
dismiss pursuant to Rule 3:3, 4 and simultaneously filed a series
4
Rule 3:3 provides: "No judgment shall be entered against
a defendant who was served with process more than one year after
the commencement of the action against him unless the court
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of motions addressing the merits of the plaintiff's motion for
judgment. The trial court dismissed the plaintiff's action
pursuant to Rule 3:3. See id. at 580-81, 515 S.E.2d at 125. On
appeal, although conceding that he had made a general appearance
before the circuit court, the defendant contended that Code
§ 8.01-277 allowed him to appear generally without waiving his
Rule 3:3 motion to dismiss. See id. at 581-82, 515 S.E.2d at
125-26.
In rejecting defendant's position, the Supreme Court held
that Code § 8.01-277 did not apply where the party seeking to
invoke it had not been served with process. See id. at 582, 515
S.E.2d at 126. Because the defendant had made a voluntary,
general appearance, he had subjected himself to the circuit
court's jurisdiction. See id. In recognizing that the
defendant was being treated differently than defendants who were
served with process, the Court explained: "We believe that this
is the very distinction the legislature intended to create when
it enacted Code § 8.01-277 permitting only a defendant who has
been actually served with process to raise specific
jurisdictional challenges prior to or simultaneously with the
filing of any pleading to the merits." Id. at 583, 515 S.E.2d
at 126.
finds as a fact that the plaintiff exercised due diligence to
have timely service on him."
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We hold that Gilpin is dispositive of the present case.
Brown concedes that she appeared both specially and generally
before the juvenile court. Furthermore, Brown testified, and
the circuit court found, that she was never served with the
process for the custody petitions. Accordingly, when Brown
entered a general appearance before the juvenile court, in
addition to her special appearance, she subjected herself to the
jurisdiction of that court. 5
II. Taking Rob's Testimony In Camera
The guardian ad litem advised the trial court that Rob
wanted to speak with the court on the custody issue. Both the
guardian ad litem and appellees indicated a preference that Rob
be questioned by the court in camera. Appellant objected to the
court questioning Rob out of the presence of counsel.
As of June 1998, when the circuit court heard evidence on
the custody issue, this matter had been pending before the City
of Charlottesville courts for over six years. Brown had filed
approximately twenty-one motions in the juvenile court, which
she renewed in the circuit court, in her attempt to retain
custody over Rob. She had moved for the replacement of the
guardian ad litem on the ground that he was biased, and counsel
for Brown had informed Brown that she should not discuss the
5
Because we hold that the juvenile court obtained personal
jurisdiction over Brown, we do not address the propriety of the
circuit court's efforts to cure the perceived lack of
jurisdiction.
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case with the guardian ad litem. Brown had also moved that
attorney Susan White be disqualified from representing Burch and
McNish simultaneously.
Counsel for appellees had filed a motion for sanctions
against Brown's counsel, and also a June 1997 motion to review
visitation. The latter motion was instigated by an incident
where Brown had prevented Rob from attending an out-of-state
hockey camp against Rob's wishes, and despite the fact that
Burch had already purchased Rob's plane ticket. 6
Craig Villalon, a licensed clinical social worker, met with
Rob on four occasions. Although he testified that Rob was
stable and well-adjusted, Villalon believed that Rob would feel
"very uncomfortable" if he had to testify in open court.
Villalon testified that the custody dispute had been "extremely
stressful" for Rob and that Rob would feel "conflicted"
testifying because he did not want to appear disloyal to his
mother.
6
The evidence at the hearing on the motion established that
on the weekend of the trip, Rob went for his scheduled
visitation with Brown, that Brown went out of town and left Rob
with his maternal grandfather, that the maternal grandfather had
not allowed Rob to use the telephone to contact Burch, and that
the grandfather had prevented Rob's return, thus causing the boy
to miss the hockey camp. In explaining to the circuit court why
she had prevented Rob from attending the camp despite the fact
that she would not be spending any time with the boy, Brown
testified: "[I]t was time to take a stand."
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The circuit court ruled that it would take Rob's testimony
in camera, without the presence of counsel. Brown did not
object to Rob's testimony being taken in camera, but asserted
that her attorney should be present. In overruling Brown's
objection, the trial court stated:
I have decided that I'm going to talk to the
child alone, in part based on the
recommendation of the guardian ad litem, and
partly based on what I have seen in terms of
the acrimony being generated in the
courtroom and the degree of tension, the
duration of the dispute, [and] the kind of
pressure that this will inevitably have on a
young man of that age. He's 12 years old.
Apparently he's a wonderful, superstar young
man. At the same time this has got to be a
very painful thing for him. And it's my
judgment at this time that the best way to
handle this would be for me to interview him
in chambers in the presence of the court
reporter.
Neither party accepted the court's subsequent invitation to
proffer any questions that they wished to have asked of Rob.
The court reporter recorded and prepared a transcript of the
circuit court's conversation with Rob.
No person who is a party to a [child
custody] proceeding-litigant, counsel, or
chancellor-relishes the spectacle of a child
testifying in open court as to his or her
preference for one parent over another.
Accordingly, the preferred method of
receiving such evidence in the majority of
jurisdictions is to obtain the child's views
in an in camera interview.
Haase v. Haase, 20 Va. App. 671, 680-81, 460 S.E.2d 585, 589
(1995) (citations omitted).
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In Haase, the trial court, over the father's objection,
conducted an in camera interview of the children who were the
subject of the custody dispute. The parties' attorneys were not
present. In affirming the trial court, we recognized that a
parent must be accorded the benefits of due process in a custody
dispute. See id. at 681, 460 S.E.2d at 589. "Nonetheless,
'[i]n any child custody decision, the lodestar for the court is
the best interest of the child,' and the due process rights of
the parents must be tempered by this guiding principle." Id. at
681, 460 S.E.2d at 589-90 (citation omitted).
We declined to adopt a bright-line rule for determining
when a commissioner or chancellor could conduct in camera
interviews of children without the presence of counsel.
Rather, in determining how to proceed with
the receipt of evidence from children in
custody cases, the judicial officer . . .
should consider the facts and circumstances
of the particular case. Among the factors
to be considered are the age and maturity of
the children, the matters to be brought
forth in their testimony, the acrimony
between the parents, and the likelihood of
improper influence by one or both of the
parents on the children's testimony. Based
upon the consideration of these factors and
others as may be appropriate, the judicial
officer should then determine the method of
receiving evidence which serves the best
interest of the children while preserving to
the greatest extent possible the procedural
rights of the parents.
Id. at 682, 460 S.E.2d at 590 (footnote omitted).
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The record reflects that the dispute over Rob's custody was
contentious, acrimonious, and had dragged on for more than six
years. The purpose of taking twelve-year-old Rob's testimony
was to hear from him whether he preferred to live with his
mother or his stepfather. Although the circuit court questioned
Rob alone, the court offered the parties the opportunity to
proffer any questions they wished to have asked of Rob, and the
in camera proceedings were recorded and transcribed.
Accordingly, considering the totality of the circumstances
present in this case, we hold that the circuit court did not
abuse its discretion.
III. Sufficiency of the Evidence
We review the evidence in the light most favorable to Burch
and McNish, the parties prevailing below, and grant to them all
reasonable inferences fairly deducible therefrom. See Anderson
v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999).
So viewed, the record discloses that Burch married Brown in
the summer of 1989. Rob was three years old at the time, but
Burch testified that he had frequent contact with the boy
"beginning when [Rob] was about one year of age and gaining in
frequency until Mrs. Brown and I were married." Burch described
himself as Rob's primary caretaker during the marriage. He
testified that Brown would often return home from work
intoxicated, and on one occasion, Burch came home to find Brown
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using cocaine in the bathroom with another man while Rob played
elsewhere in the house.
In January 1992, Brown took Rob and moved in with Bruce
Gray. In April 1992, suspecting that Gray had physically abused
Rob, appellees filed petitions seeking temporary, joint custody
of Rob. Less than two weeks later, they filed petitions seeking
permanent, joint custody of Rob.
The juvenile court awarded joint custody of Rob to
appellees on August 12, 1992, and, although Brown filed a timely
appeal, she took no further action in the matter until filing a
praecipe with the circuit court on November 21, 1996. During
this period of time, Rob continuously resided with Burch.
The parties presented a significant amount of evidence
regarding the positive nature of their relationships with Rob.
By all accounts, Rob excelled in academics, music, and
athletics. He was involved in band, scouting, and organized
sports. Burch was actively involved in all aspects of Rob's
development.
McNish testified favorably regarding Burch's parenting
skills, stating that he knew "that Rob's best interests are the
number one priority of [Burch]." McNish further stated that
under the current custody arrangement he had virtually
unrestricted access to Rob, which allowed him to develop a
better relationship with Rob than he had been able to do when
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Brown had custody of the boy. McNish noted that, after Brown
left Burch, she had attempted to prevent Burch from seeing Rob.
Brown also presented evidence regarding her fitness as a
parent. Indeed, the circuit court noted that Brown had "made an
impressive, . . . positive turn in her life. . . . I think
she's used major initiatives as a non custodial parent to stay
involved with this young man."
Villalon testified that Rob was "extremely stable,
reliable, hardworking, [and] well-adjusted." He further
testified that Rob had expressed to him a desire to remain with
Burch. Villalon believed that, although Rob was well-adjusted,
a change in custody could result in situational depression. He
explained that Rob was "at a developmental stage of his life.
Stability is very important to him." Villalon concluded that a
change in custody "would be counterproductive for [Rob]
psychologically and emotionally." Villalon also stated that Rob
was mature enough to make a judgment about what was best for
him.
During his interview with the judge, Rob expressed his
happiness with his current living conditions. He expressed
concern about having to move to a new location, changing
schools, and having to make new friends. 7 He described his
7
Brown was living in Waynesboro at the time. Rob told
Villalon that, even if Brown was to move to Charlottesville, he
wished to remain with Burch.
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relationships with Burch and McNish as "great." He also advised
the court that he enjoyed a good relationship with Brown, her
husband, and his two half-sisters. Rob concluded: "I would
like to stay in Charlottesville [with Burch], you know, same
thing that's been going on, same visitation and stuff, because I
mean everything's been working out fine."
The guardian ad litem recommended to the trial court that
Burch and McNish be awarded joint custody, arguing that it was
in Rob's best interest and re-iterating that it was consistent
with Rob's wishes.
In announcing its ruling, the circuit court noted that Rob
"did make it clear that he did not want a change in his current
situation. He said he liked things the way they were." The
judge stated that he was "very much impressed with" Rob and that
"[h]e's obviously a remarkable young man."
The circuit court did not find that Brown was unfit.
Rather, the court noted:
What we have before us today, however, is
the issue of changing [Rob's] custodial
arrangement in the middle of a situation
where this young man has done not just well,
he's done off the charts, according to
everybody's testimony. I haven't heard any
evidence how a change of custody would
improve on how he's done, [or] that there is
some deficiency that needs to be corrected
in his emotional stability or his mental
health, [or] physical health.
The court further found that Rob had "been apparently incredibly
well cared for" by Burch. The circuit court awarded custody of
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Rob jointly to Burch and McNish, finding that it was in Rob's
best interest to do so.
"In issues of child custody, 'the court's paramount concern
is always the best interests of the child.'" Vissicchio v.
Vissicchio, 27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998)
(quoting Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d
794, 795 (1990)). See 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.'" Piatt v.
Piatt, 27 Va. App. 426, 432, 499 S.E.2d 567, 570 (1998)
(citation omitted). "Absent clear evidence to the contrary in
the record, the judgment of a trial court comes to an appellate
court with a presumption that the law was correctly applied to
the facts." Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d
102, 105 (1995).
In determining the best interests of the child, the trial
court must consider the statutory factors identified in Code
§ 20-124.3. "The court shall give due regard to the primacy of
the parent-child relationship but may upon a showing by clear
and convincing evidence that the best interest of the child
would be served thereby award custody or visitation to any other
person with a legitimate interest." Code § 20-124.2(B). A
stepparent is considered a person with a legitimate interest.
See Code § 20-124.1.
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"[T]he wishes of a child who has reached the age of
discretion, though not controlling, should be considered [by the
trial court] and given appropriate weight." Bailes v. Sours,
231 Va. 96, 99, 340 S.E.2d 824, 826 (1986). See Code
§ 20-124.3(7) (in determining the best interests of the child,
the court "shall" consider "the reasonable preference of the
child"). Likewise, "the recommendation of the guardian ad litem
. . ., while not binding or controlling should not be
disregarded." Bottoms, 249 Va. at 420, 457 S.E.2d at 108.
"'In a custody dispute between a parent and non-parent, the
law presumes that the child's best interests will be served when
in the custody of its parent.'" Id. at 413, 457 S.E.2d at 104
(quoting Judd v. Van Horn, 195 Va. 988, 996, 81 S.E.2d 432, 436
(1954)). "Although the presumption favoring a parent over a
non-parent is a strong one, it is rebutted when certain factors
are established by clear and convincing evidence." Bailes, 231
Va. at 100, 340 S.E.2d at 827 (footnote omitted). "[I]n the
absence of a showing of unfitness of the parent, special facts
and circumstances must be shown constituting an extraordinary
reason for taking a child from its parent, or parents."
Wilkerson v. Wilkerson, 214 Va. 395, 397-98, 200 S.E.2d 581, 583
(1973). "[W]hile the legal rights of a parent should be
respected in a custody proceeding, those technical rights may be
disregarded if demanded by the interests of the child."
Bottoms, 249 Va. at 419, 457 S.E.2d at 108.
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"The initial burden is on the nonparent to introduce clear
and convincing evidence at trial of facts and circumstances
which constitute an 'extraordinary reason' for depriving a
natural parent of custody of her or his child." Mason v. Moon,
9 Va. App. 217, 223, 385 S.E.2d 242, 246 (1989) (quoting Patrick
v. Byerley, 228 Va. 691, 694, 325 S.E.2d 99, 101 (1985)).
"'Such evidence . . . must be cogent and convincing.'" Elder v.
Evans, 16 Va. App. 60, 65, 427 S.E.2d 745, 748 (1993) (quoting
Judd, 195 Va. at 996, 81 S.E.2d at 436). "Once the presumption
favoring parental custody has been rebutted, the parental and
non-parental parties stand equally before the court, with no
presumption in favor of either, and the question is the
determination of the best interests of the child according to
the preponderance of the evidence." Walker v. Fagg, 11 Va. App.
581, 586, 400 S.E.2d 208, 211 (1990).
As a preliminary matter, we must determine the burden and
quantum of proof involved in deciding the custody issue. If
this was a contest solely between Brown and Burch, Burch would
have had to prove by clear and convincing evidence that he
should be granted custody. If the contest was solely between
Brown and McNish, no presumption would arise in favor of either
parent. Appellees contend that, because of McNish's
involvement, this case should be treated as if it were between
two natural parents. We disagree.
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In Wilkerson, in a custody dispute between a mother and a
father, after finding that the mother was unfit, the trial court
awarded custody of the child to the mother's relatives, with
whom the child had been living temporarily. See Wilkerson, 214
Va. at 395-96, 200 S.E.2d at 582. The court found, by a
preponderance of the evidence, that the child's best interests
were served by awarding custody to the mother's relatives
instead of the father. See id. at 397, 200 S.E.2d at 583.
Despite the mother's at least tacit agreement with the trial
court's custody ruling--the relatives were not a party to the
suit--the Supreme Court held that this was a contest between a
parent and non-parents, and the mother had the burden of proving
with clear and convincing evidence that the father should be
denied custody. See id. See also Brooks v. Carson, 390 S.E.2d
859, 865 (Ga. App. 1990) ("If a third party obtains custody from
one parent, it gives her no right and no advantage against the
other parent, for one parent cannot contract away custody of the
child to a third party in avoidance of the other parent's
rights.").
The present case is distinguishable from Wilkerson because
McNish is not unfit, and he is seeking joint custody of Rob.
Nevertheless, McNish's involvement as a party seeking joint, but
not physical custody of Rob does not allow Burch to transcend
his status as a non-parent. Accordingly, we hold that Burch and
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McNish had the burden of proving by clear and convincing
evidence why Brown should be denied custody of Rob.
In Bailes, the Supreme Court addressed the issue of special
and extraordinary circumstances that would justify an award of
custody to a non-parent. There, the parents had separated in
1972 when the child was one year old, and the father assumed
custody of the child. The father married Sours in 1975, and
died in 1983, whereupon the mother sought custody of the child
from Sours. See Bailes, 231 Va. at 97-98, 340 S.E.2d at 825.
In finding clear and convincing evidence rebutting the
presumption that the child's best interests would be served by
awarding custody to his natural mother, the Court noted: 1) the
mother was "virtually a 'stranger to her son'" and that she had
not seen the boy for four years before the father's death; 2)
the child had developed a close relationship with Sours; 3) the
child had resided with Sours for approximately ten years; 4) the
child expressed a desire to remain with Sours; and 5) expert
testimony was presented that transferring custody to the mother
would have a serious negative impact on the child's health and
well-being. Id. at 101, 340 S.E.2d at 827 (citation omitted).
The circumstances that might justify denying a parent
custody of his or her child in favor of a non-parent will vary
from case to case. In determining whether exceptional
circumstances exist that justify awarding custody of a child to
a non-parent, courts in other states have utilized factors
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similar to those relied upon in Bailes. In Ross v. Hoffman, 372
A.2d 582 (Md. 1977), some of the factors the court considered
included: 1) the age of the child when care was assumed by the
non-parent; 2) the period of time elapsed between the parent's
loss of custody and his or her attempt to regain custody; 3) the
intensity and genuineness of the parent's desire to obtain
custody of the child; and 4) the stability and certainty of the
child's future in the parent's custody. See id. at 593-94. See
also Locklin v. Duka, 929 P.2d 930, 935 (Nev. 1996) (including
in the factors to be considered whether "the child's well-being
has been substantially enhanced under the care of the
non-parent").
A number of factors justified the trial court's ultimate
award of joint custody to Burch and McNish. Rob had
continuously lived with Burch for six years at the time of the
custody hearing, and has now been in Burch's custody for more
than seven years. The record reflects that, under Burch's
guidance, albeit with input from both McNish and Brown, Rob has
excelled in athletics, music, and academics. Rob is
extraordinarily well-adjusted and displays a marked level of
maturity for someone his age. He expressed a desire to remain
in Burch's physical custody, and the guardian ad litem concurred
that this was in Rob's best interest. Moreover, a mental health
professional testified that Rob's well-being would be adversely
affected if the circuit court transferred custody to Brown.
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Despite filing a timely appeal to the circuit court in
August 1992, Brown took no legal action to overturn the juvenile
court's order for more than four years. We note that during the
time Burch has had custody, there has been no evidence that he
has interfered with Brown's visitation rights or her
relationship with Rob. Additionally, Rob's relationship with
his father has flourished under the current arrangement. On the
other hand, the court heard evidence that after Brown left Burch
in January 1992, she attempted to prevent Burch from seeing Rob.
See Code § 20-124.3(6) (the court must consider "[t]he
propensity of each parent to actively support the child's
contact and relationship with the other parent").
This case is particularly unique because this is not merely
a custody dispute between Brown and Burch. Rather, the dispute
is between Brown and Burch and McNish. While McNish is not
seeking physical custody of Rob, he is seeking "joint
responsibility for the care and control of [Rob] and joint
authority to make decisions concerning [Rob]." Code § 20-124.1
(defining joint custody). To trivialize McNish's sought-after
role is to ignore the importance the General Assembly attaches
to joint custody arrangements. See Code § 20-124.2(B); Jones v.
Jones, 26 Va. App. 689, 694-95, 496 S.E.2d 150, 153 (1998)
(noting that recent changes to Code § 20-124.2 had the effect of
encouraging joint custody in appropriate cases).
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Although each dispute concerning custody and visitation
presents unique circumstances--shown by this case in
particular--the trial court's judgment in every case is guided
by a single, unvarying standard that the welfare of the child is
the primary, paramount, and controlling consideration of the
court. All other matters are subordinate. See Mullen v.
Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948). The trial
court's decision whether it was to the best interest of Rob was
within its discretion and is reversible only upon a showing that
the court abused its discretion. See Vissicchio, 27 Va. App. at
246, 498 S.E.2d at 428; M.E.D. v. J.P.M., 3 Va. App. 391, 398,
350 S.E.2d 215, 220 (1986).
Having considered the totality of the circumstances present
in this case, we hold that the record contains clear and
convincing evidence of special and unique circumstances that
justified the circuit court in denying Brown custody of Rob. We
further hold that the trial court did not err when it found that
Rob's best interests were served by granting joint custody to
Burch and McNish, with Burch retaining physical custody of the
boy.
IV. Attorneys' Fees
Whether to award a party or parties attorneys' fees is a
matter left to the discretion of the trial court. See Fairfax
County v. Donald, 251 Va. 227, 229, 467 S.E.2d 803, 804 (1996).
Upon our review of the record, including the various pleadings
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filed by Brown, we cannot say the court abused its discretion in
denying appellees' request for attorneys' fees.
Accordingly, the judgment of the circuit court is affirmed.
Affirmed.
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