Petri Madeline Vanderveer v. Robert Allen Vanderveer

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Elder and Bumgardner
Argued at Richmond, Virginia
PETRI MADELINE VANDERVEER
MEMORANDUM OPINION∗ BY
v. 	Record No. 0122-04-2 	CHIEF JUDGE JOHANNA L. FITZPATRICK
SEPTEMBER 28, 2004
ROBERT ALLEN VANDERVEER
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
John H. Kitzmann (Davidson & Kitzmann, PLC, on briefs), for
appellant.
S. Braxton Puryear for appellee.
∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Petri Madeline Vanderveer (wife) appeals the transfer of primary custody of her son,
Michael Vanderveer (Michael), to Michael’s father, Robert Allen Vanderveer (husband), pursuant
to Code § 20-124.2(B). She contends that the trial court erroneously based its ruling solely on
wife’s unmarried cohabitation with Christopher Collins (Collins), and wrongly concluded that
the custody transfer was in Michael’s best interests. We hold that the trial court did not err in
transferring custody from wife to husband, and affirm.
I. BACKGROUND
“On appeal, we construe the evidence in the light most favorable to [husband], the
prevailing party below, granting to [his] evidence all reasonable inferences fairly deducible
therefrom.” Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995) (citing
McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990)).

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So viewed, the evidence established that husband and wife were married on July 2, 1994,
separated on August 10, 2001, and entered into a separation agreement on August 9, 2002. Their
separation agreement was incorporated into a final decree of divorce, entered by the Albemarle
County Circuit Court on October 21, 2002. The agreement granted primary physical custody of
Michael to wife.
During the marriage, husband and wife lived in Charlottesville. Husband worked first as
a contractor for his father, then, after Michael was born, he was employed full-time in the Active
Guard Reserve of the Virginia National Guard. Wife began working as a nanny a few months
after Michael’s birth so that she could take Michael to work with her. After the separation, wife
moved about an hour outside Charlottesville, and husband remained in Charlottesville. Husband
was involved in Michael’s life both during and after the separation and divorce, and cared for
him often. Husband and wife would meet between their homes near Charlottesville to exchange
Michael for husband’s visits. Husband’s visitations were usually every other week for three
nights during this time. Michael was also close to husband’s large extended family, including
four cousins, who live in the Charlottesville area.
Husband was deployed to Guantanamo Bay, Cuba in December 2002 as a member of the
Virginia Army National Guard Reserve, and returned to the United States in September 2003.
After husband’s deployment, Michael visited with husband’s parents every other weekend.
Husband spent several days of his two leaves from Cuba with Michael.
In January 2003, while husband was deployed, wife informed him that she had relocated
to Florida with Michael in order to live with Christopher Collins, a man she had met in a bar in
Charlottesville in September 2002. 	She gave husband no prior notice that she was moving to
Florida with Michael:

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Q: You never said anything to [husband] about your plans to
move?
A: No.
Q: You never said anything to his mother?
A: I didn’t think it was relevant, since Rob was going to be
leaving, and he was going to be gone for a year, possibly longer.
Who knew?
Q: And you intended to take Michael with you when you moved?
A: Correct.
Q: And Rob’s parents were close to Michael, isn’t that correct?
A: Could have been closer, but correct.
Q: Okay. And he has a number of cousins in the area?
A: Right.
Q: The Vanderveers were a close family?
A: (No audible response.)
Q: And you didn’t think it was relevant to discuss that you were
moving to Florida?
A: No, sir.
Q: It wasn’t a matter of giving thirty days notice in advance. It
wasn’t a matter of saying a couple of days before you left. The
Vanderveers found out that you had moved to Florida after you
moved. Isn’t that correct?
A: Correct.
Q: You notified Rob by e-mail –
A: Right.
Q: - that you had moved?
A: (Indicate yes.)

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Wife testified that she worked as a dental assistant while in Florida, and had plans to
further her education. She also testified that she and Collins planned to get married in September
2004. Husband was released from active military duty in October 2003, and accepted a
non-deployable position as an army recruiter in Charlottesville, where he planned to live
permanently.
The trial court found that husband and wife were both good parents, but that it was in
Michael’s best interests that custody be transferred to father. It cited wife’s unilateral decision to
move to Florida without notice to husband, and the need for Michael, age three and a half at the
time of trial, to be close to both parents. The court also cited wife’s financial dependence on a
man who was not her husband, the negative influence of her unmarried cohabitation with Collins
on the child, and Michael’s close relationship to father’s extended family in the Charlottesville
area.
After the trial court’s ruling, wife married Collins. She then filed a motion to reconsider,
which the trial court denied.
II. ANALYSIS
On appeal, wife contends that the trial court erred in transferring primary custody to
father.1 We disagree.
“It is well settled in Virginia that the best interest of the [child] controls the issue of a
change of custody or the issue of a custodial parent moving the children to another state.”
Simmons v. Simmons, 1 Va. App. 358, 362, 339 S.E.2d 198, 200 (1986). “In matters of a child’s
welfare, trial courts are vested with broad discretion in making the decisions necessary to guard
1 Although wife lists fourteen assignments of error, the sole issue raised in this appeal is
whether the trial court erred in transferring primary custody from the mother to the father under
the facts of this case.

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and to foster a child’s best interests.” Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990).
In reaching a decision on the best interests of the child, the court is
guided by Code § 20-124.3, which specifies a myriad of factors
appropriate to the issues of custody and visitation. However, as
long as the trial court examines the factors, it is not required to
quantify or elaborate exactly what weight or consideration it has
given to each of the statutory factors. The trial court’s
determination of the child’s best interests is a matter of
discretion . . . , and, unless plainly wrong or without evidence to
support it, the court’s decree must be affirmed.
Sullivan v. Knick, 38 Va. App. 773, 783, 568 S.E.2d 430, 435 (2002) (internal citations and
quotations omitted), see also Bostick v. Bostick-Bennett, 23 Va. App. 527, 533, 478 S.E.2d 319,
323 (1996).
Wife contends that the transfer of custody was not in Michael’s best interest and that the
trial court erroneously relied on wife’s unmarried cohabitation with Collins as the sole factor in
determining that the transfer of custody was in Michael’s best interest.2
“In determining the best interest of a child for purposes of determining custody or
visitation arrangements,” the court must consider the following factors under Code § 20-124.3:
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;
2 Neither husband nor wife contests the trial court’s ruling that a change in circumstances
occurred.

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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;
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. 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.
In making his ruling, the trial judge specifically cited the factors he considered:
So, this Code section that I’m required to consider is 21-24.3 [sic]
and there are a number of factors, ten specifically, that I need to
consider. And the attorneys have addressed those in closing
argument. And I have looked at those and considering what I need
to do in this case. So, I’ve looked at age, physical and mental
condition of the child. I’ve looked at the age, physical and mental
condition of each parent. I’ve looked at the relationship between
the parent and the child and the involvement of each parent’s –
involvement of each parent in the child’s life, the ability to assess
and meet emotional, intellectual, and physical needs of the child,
the relationships of the child, including family, the role each
parent’s played in the life of the child and raising the child. The
cooperation between the parents and permitting access to the child;
preference of the child doesn’t apply due to the child’s age, and
there’s no history of any family abuse.
The trial judge elaborated more specifically on how these factors relate to the instant
case:
The big concern to the court is that, in a preferred world, this child
should be able to be raised by Mom and Dad and have access to
Mom and Dad . . . . In this situation, the mother’s move to Florida
has made that more difficult. Certainly the father being deployed
made it more difficult to have continuing, constant contact with the
child. His was not voluntary, hers was . . . there are [other]
negative effects of [wife’s move], in that she’s moving in with this

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man that is not the child’s father; that there has to be a new
relationship. It takes away – a constant contact between father and
child by moving the child to Florida. And we’re depending on a
man to provide this financial support who has no legal obligation
to do that. Much less, if you – if you want to be old fashioned, the
moral atmosphere for the child is not one that the court looks on
with favor. So, all that being said, having considered these factors,
I find it’s in the best interest of the child that if the father’s going
to be in Charlottesville with his family, that primary custody
should be transferred to the father from the mother.
Credible evidence supports the trial court’s ruling. The trial court was “not required to
quantify or elaborate exactly what weight or consideration it has given to each of the statutory
factors.” Sullivan, 38 Va. App. at 783, 568 S.E.2d at 435 (internal citations and quotations
omitted), see also Bostick, 23 Va. App. at 533, 478 S.E.2d at 323. Nevertheless, the trial court
emphasized the need for the child to be near both parents, wife’s voluntary removal of the child
from contact with father and his extended family without notice, wife’s reliance on a man who
had no obligation to care for her or Michael for financial support, and the unmarried
cohabitation’s affect on the child.3 Because the trial court’s analysis sufficiently reflects its
consideration of the factors set out in Code § 20-124.3, we cannot say that its judgment was
plainly wrong or without evidence to support it.
Wife argues that Lawrence v. Texas, 539 U.S. 558 (2003), compels a different result. We
disagree. That case is factually inapposite. While finding that the Texas sodomy law banning
“deviate sexual intercourse” between consenting adults of the same sex, but not between
consenting adults of different sexes is unconstitutional, the Supreme Court did not extend its
ruling beyond that criminal context:
3 The trial court clearly did not base its ruling solely on wife’s unmarried cohabitation as
appellant asserts, since it denied wife’s motion to reconsider that was filed after she later married
Collins.

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The present case does not involve minors. It does not involve
persons who might be injured or coerced or who are situated in
relationships where consent might not easily be refused. It does
not involve public conduct or prostitution. It does not involve
whether the government must give formal recognition to any
relationship that homosexual persons seek to enter . . . . The state
cannot demean their existence or control their destiny by making
their private sexual conduct a crime.
Id. at 578.
Thus, Lawrence does not prevent a trial court from considering the atmosphere present in
a parent’s home in determining the best interest of the child. See also Piatt v. Piatt, 27 Va. App.
426, 499 S.E.2d 567 (1998).
Accordingly, we affirm the judgment of the trial court.
Affirmed.