Brown v. Brown

518 S.E.2d 336, 30 Va. App. 532, 1999 Va. App. LEXIS 511
CourtCourt of Appeals of Virginia
DecidedAugust 31, 1999
Docket1830984
StatusPublished
Cited by126 cases

This text of 518 S.E.2d 336 (Brown v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Brown, 518 S.E.2d 336, 30 Va. App. 532, 1999 Va. App. LEXIS 511 (Va. Ct. App. 1999).

Opinions

[535]*535COLEMAN, Judge.

Colleen N. Brown (mother) appeals from a ruling of the trial court denying her request for a change in custody of the two children bom of her marriage to Mark R. Brown (father). On appeal, she contends the court erroneously failed (1) to award her sole legal custody or joint legal custody with father; and (2) to order father to discontinue home-schooling the children. For the reasons that follow, we disagree and affirm the ruling of the trial court.

BACKGROUND

In accordance with familiar principles, we summarize the evidence in the light most favorable to the prevailing party below. See Bottoms v. Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995). The parties have two children, a daughter Danielle born in 1987 and a son Christopher born in 1991. When they divorced in 1995, they agreed upon joint legal and physical custody of the children. Soon thereafter, a dispute arose about Danielle’s enrollment in Faith Christian School and mother’s shared custody when she planned to live with her paramour. Following a hearing, the trial court awarded sole legal custody to father but ruled that the parties would jointly decide where to enroll the children in school.

When mother chose not to have the children attend Faith Christian School, father decided to home-school the children, to which mother objected. Following a hearing on August 21, 1996, the trial court modified its earlier ruling to provide that father had the authority to decide “where and in what manner the parties’ minor children are to be schooled.” Father’s home-school curriculum was approved by the Director of Pupil Services for the county.

On August 13, 1997, following one year of father’s homeschooling, mother moved for sole or joint legal custody of the children, or alternatively, for an order directing that the children attend a specific public elementary school. Mother complained that father excluded her from participating in her children’s lives. Mother contended that the home-schooling, [536]*536the assigned homework, and the children’s extra-curricular activities detracted from her scheduled time with the children. She conceded, however, that she supported the children’s participation in some of the extra-curricular activities. Father explained that although some of the extra-curricular activities occurred during mother’s scheduled time with the children, typically the schedules were not established until after enrollment in the activities. Further, father told the children that he could only guarantee their attendance at these activities during his scheduled time with them.

Although father initially denied mother’s request to assist in the home-schooling, he invited her to visit the classroom in early 1997. On that occasion, the tension between the parents detracted from the learning environment, and father determined that in the future it would be best if mother were not present during classroom time. According to his testimony, father encouraged mother’s participation in other homeschooling events and suggested that her presence would benefit the children. Mother conducted a field trip and held a monthly art class for several children, including Danielle and Christopher. Father testified that he encouraged mother to be involved with these groups and explained that he initially had not included her name on their home-schooling group’s phone lists because mother previously had aired their personal problems to other parents.

Father denied allegations that he forbade the children from attending mother’s church. Father testified that he merely wanted custody of them on Sundays to ensure that they attended church on a regular basis and in a consistent program.

Mother testified that she ended her relationship with her paramour following the court’s April 1996 ruling and had no contact with him since he moved out. She also testified that no other man to whom she was not related had been “under my roof while the children were in my custody.”

Each party accused the other of inappropriate parenting. As an example of alleged inappropriate discipline, mother [537]*537testified that father made Danielle stand in the corner on one occasion for an hour and forty minutes until she apologized for being disrespectful. Father offered testimony that mother inappropriately involved the children in the parties’ disputes.

Although the children expressed a desire to attend public school, they also praised home-schooling and performed very well in that environment.

Mother offered the expert testimony of Dr. Zuckerman, a licensed clinical psychologist. Dr. Zuckerman supported mother’s complaints regarding the children’s school environment and its detrimental impact on her relationship with the children. He opined that the children would be better off in a school where both parents felt welcome and over which the parental conflict was not an issue. However, Dr. Zuckerman testified that he was not in a position to make a recommendation regarding child custody.

Father offered the testimony of Dr. Brian Ray, who qualified as an expert in the field of education. He opined that the children’s “home-schooling is working very well.” He agreed that it was important for mother to be as involved as possible in their schooling. He stated that home-schooling would provide both parents more time to be with their children, which is especially important in divorce situations, and that home-schooling permitted father to integrate his personal “religious philosophical view” into their education, both of which were likely to help the children avoid the negative aspects of peer pressure. Finally, he opined that the children engaged in sufficient activities outside the home classroom to develop necessary social skills.

ANALYSIS

A party seeking to modify an existing custody order bears the burden of proving that a change in circumstances has occurred since the last custody determination and that the circumstances warrant a change of custody to promote the children’s best interests. See Keel v. Keel, 225 Va. 606, 611-12, 303 S.E.2d 917, 921 (1983); see also Code § 20-124.2(B). [538]*538In deciding whether to modify a custody order, the trial court’s paramount concern must be the children’s best interests. See Farley v. Farley, 9 Va.App. 326, 327-28, 387 S.E.2d 794, 795-96 (1990). However, the trial court has broad discretion in determining what promotes the children’s best interests. See Eichelberger v. Eichelberger, 2 Va.App. 409, 412, 345 S.E.2d 10, 12 (1986).

Code § 20-124.3 specifies the factors a court “shall consider” in determining the “best interests of a child for ... custody or visitation.” Although the trial court must examine all factors set out in Code § 20-124.3, “it 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

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Bluebook (online)
518 S.E.2d 336, 30 Va. App. 532, 1999 Va. App. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-vactapp-1999.