Opinion
Record No. 0218-92-3
January 5, 1993
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY NICHOLAS EDWARD PERSIN, JUDGE
C. Eugene Compton, for appellant.
James Edward Slone, for appellee.
Present: Chief Judge Koontz, Judges Moon and Willis
Argued at Salem, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The judgment of the Circuit Court of Buchanan County granting Linda Lynn Atwood custody of the parties' daughter is affirmed for the following reasons.
A trial court, in determining whether a change of custody should be made, must apply a two-pronged test: (1) whether there has been a change in circumstances since the most recent custody award; and (2) whether a change in custody would be in the best interests of the child. Whether a change of circumstances exists is a factual finding that will not be disturbed on appeal if the finding is supported by credible evidence.
Visikides v. Derr, 3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986) (citation omitted).
The question is not just "whether there has been a negative change in the circumstances surrounding the custodial parent;" "[i]t is also pertinent whether there has been a positive change in the circumstances surrounding the non-custodial parent." Keel v. Keel, 225 Va. 606, 610, 303 S.E.2d 917, 920 (1983).
Here, there was evidence that after the most recent custody decree in which the father was awarded custody, the mother had married the man with whom she had lived before her divorce from the child's father. Furthermore, there was evidence that, under the father's new living conditions, the child had to go to the home of an aunt and wait before school began in the morning after her father had gone to work; in the afternoon, the child had to go to the home of another aunt and wait until her father returned from work. The court noted a substantial reduction in the amount of time that the father could now spend with the daughter as compared to the amount of time he could spend with her at the time of the previous order. The mother was currently able to provide ample time for the daughter. That evidence demonstrated a change of circumstances sufficient to permit the court to reconsider the custody issue. Thus, the question became in which party's custody would the best interest of the child be served.
In addition to matters previously referred to, the court noted that it conducted, with the consent of the parties, a private interview with the daughter and that the daughter had discussed matters with him that were important to his consideration. Although a court reporter recorded the private proceedings, they were not made a part of the record on appeal. Rule 5A:8. Because the trial judge relied upon both the in-court and the private proceedings in making his decision, and we are not privy to the private proceedings, see Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (1991), we cannot say that, as a matter of law, his decision was plainly wrong.
The father contends that the trial court applied a "tender years" inference in its determination of child custody, which is prohibited by Code § 31-15. Our review of the record indicates that, in the present determination of custody, the trial judge did not apply any such inference. After announcing his decision as to custody, the trial judge, in advising the parties as to how he might view a future change of custody petition, made reference to what appellant argues was a "tender years" presumption or inference of law. Although it would be error to apply a tender years presumption or inference of law in a custody proceeding, Visikides v. Derr, 3 Va. App. at 70, 348 S.E.2d at 41, we hold under the facts and circumstances of this case, the court applied no such inference. To the extent that anything in the order to the contrary may appear, we believe such to have been a mistake in drafting. Furthermore, because that reason for objecting to the order was not raised in the trial court, we cannot consider that question on appeal. Rule 5A:18.
Affirmed.