Brown v. Burch

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.

- 2 -
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).

- 3 -
 "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

- 4 -
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."

- 5 -
 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.

- 6 -
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."

- 7 -
 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).

- 8 -
 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).

- 9 -
 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

- 10 -
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

- 11 -
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.

- 12 -
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

- 13 -
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.

- 14 -
 "[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.

- 15 -
 "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.

- 16 -
 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

- 17 -
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

- 18 -
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.

- 19 -
 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).

- 20 -
 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

- 21 -
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.

- 22 -