COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Fulton and Lorish

Argued at Fredericksburg, Virginia

MICHAEL POWELL

MEMORANDUM OPINION* BY

v. Record No. 0853-22-4 JUDGE JUNIUS P. FULTON, III

MAY 16, 2023

MELANIE KNOEPFLER-POWELL

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

David Bernhard, Judge

James B. Kinsel (Rebecca Bricken Kinsel; Siobhan Therese Canty; 

Protorae Law, PLLC, on briefs), for appellant.

Sharon Voyles Filipour (Kinsey, Lynch & Filipour, on brief), for 

appellee.

Michael Powell (father) appeals the Fairfax County Circuit Court’s “Custody and Child 

Support Order,” entered on May 9, 2022.1 Father argues that the trial court erred by not modifying 

his custodial time with the parties’ minor child and awarding Melanie Knoepfler-Powell (mother) 

with final decision-making authority regarding the child’s medical care. Father further challenges 

the trial court’s decision to allow the child to testify and contends that the trial court erred by 

reviewing the child’s written notes that she brought with her when she testified. Father argues that 

the trial court “improperly considered” opposing counsel’s statements and erred in its interpretation 

of the child’s testimony. He also contends that the trial court erred by not providing a “mechanism 

for future evaluation or determination of whether [the child] would be ready in the future for 

* This opinion is not designated for publication. See Code § 17.1-413.

1 Neither party challenges the trial court’s child support ruling, so we will not address the 

support matters.

UNPUBLISHED
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additional time” with father. Finally, father argues that the final order contains inaccurate 

information and remand is appropriate to correct the final order. We find no substantive error and 

affirm the trial court’s judgment. We will, however, remand to the trial court to address any clerical 

errors that may be contained in the final order.

BACKGROUND

“On appeal, we view the evidence ‘in the light most favorable to the prevailing party 

below and its evidence is afforded all reasonable inferences fairly deducible therefrom.’” Bedell 

v. Price, 70 Va. App. 497, 500-01 (2019) (quoting Bristol Dep’t of Soc. Servs. v. Welch, 64 

Va. App. 34, 40 (2014)). Here, mother is the prevailing party.

Father and mother are the biological parents to a child who was nine years old at the time 

of the trial court hearing.

2

 On July 21, 2017, the trial court entered a final decree of divorce, 

which incorporated the parties’ property settlement agreement (the “PSA”). The PSA included 

provisions regarding custody, visitation, and child support. The parties agreed to joint legal 

custody of the child, and mother had primary physical custody. Father’s parenting time included 

the second and fourth weekend of every month, and the child alternated between mother and

father on any fifth weekend of a month. Father also had time with the child for four weeks in the 

summer, and the parties shared or alternated holidays and other special occasions.

On March 26, 2021, mother notified the trial court of a change in her address and her

intention to relocate with the child to Alabama, effective April 30, 2021.3 Father objected to mother 

relocating with the child and requested an injunction. Mother subsequently moved to modify 

2 The trial took place between January 25 and February 9, 2022.

3 Mother ultimately withdrew her request to move to Alabama. 
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custody and visitation and requested that the trial court allow the child to relocate with her to 

Alabama, where her family lived and she had a job offer.4

In response, father also moved to modify custody and visitation. Father, who was an 

employee of the U.S. Department of State, had been required to work in Iraq from the summer of 

2020 through the summer of 2021, but as of July 12, 2021, had a “desk job” and was in northern 

Virginia “permanently.” He requested primary physical custody of the child if mother moved to 

Alabama, or “more time” with the child if mother stayed in Virginia. Father also requested 

“tie-breaking authority” for medical decisions regarding the child.

The trial court entered a “Domestic Relations Case Scheduling Order,” setting a two-day 

trial for January 25 and 26, 2022,5and establishing pretrial deadlines. Both parties filed exhibit and 

witness lists, as required under the scheduling order. Mother named the child as a potential witness, 

to which father objected. He filed a motion in limine to preclude the child’s testimony and moved 

to quash the nine-year-old child’s subpoena. Father argued that the child’s “[i]nvolvement” in the 

hearing was not in her best interests. The trial court took father’s motion under advisement.

At the trial, father presented evidence regarding the material change of circumstances since 

the last court order. When father and mother previously agreed on the custody and visitation 

arrangements, father’s work schedule was “very unpredictable” and included travel. He knew that 

he would have to “do a[n] overseas tour somewhere” within a couple of years of that agreement 

because of the State Department’s policy. 

4 Mother had lost her job during the COVID-19 pandemic, and she was helping care for 

her mother who lived in Alabama and had been diagnosed with cancer. 

5 The trial carried over to a third day, which took place several weeks later on February 9, 

2022.
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While in Iraq, from July 2020 through July 2021, father tried to contact the child “every 

single day” by phone, Facebook Messenger, or Skype. Three times during his tour, father was able 

to return to Virginia and requested to visit with the child “as much as possible.” 

When father returned home permanently in July 2021, his job assignment changed, and he 

no longer had “unpredictable work travel.” He did not expect another overseas work assignment for 

“at least eight years.” Therefore, he sought to spend “more time” with the child and became “more 

engaged” with the child. Father explained that he wanted to help the child with her schoolwork, 

“develop her confidence,” and encourage her to “try new things.” 

At the time, father was living with his girlfriend and her daughter in the former marital 

residence, where the child grew up.6 Father claimed the child and his girlfriend’s daughter “get 

along great” but admitted that they had some “squabbles” like siblings do. Father described the 

child’s relationship with his girlfriend as “wonderful” and “growing.”

At the end of the first day of trial, the trial court raised the issue of the child testifying and 

father reiterated his objection. Father emphasized that the trial court would hear from numerous 

witnesses who could testify about the child and her relationship with the parties, so it was “not 

necessary” for the child to “be exposed” to court. Father was concerned about the child’s 

well-being and the unknown “potential harm” to her for having to testify. He argued that the child’s 

well-being “outweighs the benefit . . . of being able to hear whatever [the child] might have to say.” 

Mother’s counsel informed the trial court that she had spoken with the child about the court 

proceeding and the child wanted “to be heard.” Father expressed concern that counsel could have 

“skewed” the situation when talking with the child. Considering the child knew of the proceedings 

and there was no evidence that testifying would be “psychologically detrimental,” the trial court

6 After the evidentiary hearing, but before the entry of the final order, father married his 

girlfriend. Nonetheless, to be consistent with the trial court, we refer to her as father’s girlfriend.
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found “no reason to restrict the child from appearing.” The trial court then reviewed the procedures 

for the child testifying, including “the qualification part” and “the substantive part” of her 

testimony.

The next morning, the school counselor testified that the child had visited her the previous 

day because she was “anxious” and “nervous” about having to testify and “having to state her 

wishes in front of both parents.” After the school counselor testified, father renewed his motion in 

limine concerning the child testifying. Father argued that it was not in her best interests to testify, 

especially considering her age and “level of anxiety.” The trial court acknowledged that the child 

told a “neutral person” that she was nervous about coming to court but found that her feelings were 

“understandable.” Mother argued that the trial court needed to consider the “preference of the 

child” and claimed that father had not agreed to other suggested methods for conveying the child’s 

preference, such as a therapist’s testimony or stipulating to the child’s statements after counsel 

spoke with her. After hearing the parties’ arguments, the trial court found that testifying would not 

be “any more harmful [to the child] than already being in this . . . situation.”

Following the trial court’s ruling, the child entered the courtroom and met the judge; she 

stated that she had “brought a few notes” with her. The trial court told the child that she could refer 

to them if she wanted. The trial court then questioned the child regarding her competency to testify, 

and ultimately, neither party objected to the child’s qualifications for testifying.

The trial court questioned the child about her parents. The child explained that when father 

returned from Iraq and had more time to spend with her, she thought it was “good to see him a little 

bit,” but she was “used to hanging out with mom and stuff” and did not “want to go back.” When 

the trial court tried to clarify what she meant, the child did not have an immediate response. The 

trial court then asked her if she wanted to look at her notes. The child informed the trial court that 

they were “not really notes” because she “wrote a whole book about it.” The child shared her notes
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with the trial court and told the judge that she wrote it “yesterday and today.” The trial court told 

counsel that it had not decided whether it would consider her notes, but it wanted to “review 

[them].” After taking a “quick look” at the child’s notes, the trial court asked the child about her 

dog, with whom she said she was “[v]ery, very close.” 

The trial court then asked the child about her relationship with father. The child could not 

express to the trial court what father “could do better” to make things more “comfortable” for her. 

The trial court asked the child whether she had told father about “[s]ome of the things that [she] had 

in the notes,” and the child indicated that she had not because she was “worried” that he would not 

like them. The trial court suggested that she should tell him how she feels, but she was reluctant to 

do so. Further, the child testified that sometimes mother helped her express her feelings to father.

The trial court then emphasized that it, not her parents, would be deciding what happened. 

Nevertheless, it wanted to know what she wanted for her “living situation.” The child said that she 

wanted to live with mother and visit father when she wanted. She also indicated that she did not 

want her parents to call her “every day” when she was at the other parent’s house because 

sometimes, she was busy and did not want to talk. After counsel had a chance to ask questions of 

the child, the trial court asked the child about her stuffed animal, which was at mother’s house. The 

trial court returned the child’s notes to her. 

After the child left the courtroom, the trial court informed the parties that before it had 

returned the child’s notes to her, it had surreptitiously made a copy. The trial court indicated that it 

intended to share the child’s notes with the parties and wanted to admit the notes as a sealed 
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demonstrative exhibit because the child adopted some of the contents as her testimony.7 The trial 

court informed the parties that it would hear any objections to it being admitted as demonstrative 

and whether it could consider the contents at the next hearing. The trial court noted that as a 

demonstrative exhibit, it had “no evidentiary value in and of itself.” Father objected to its 

admission, but mother did not. Father did not offer a basis for his objection, notwithstanding the 

fact that the trial court invited both parties to “protect” the record.

The trial court also commented that “this has been an interesting dynamic” and that “some 

innocent things that dad says are being perceived a certain way” because the child is “very 

sensitive.” The trial court found it “helpful to see what the child’s view is” and that she seemed 

“comfortable in the proceedings.” Further, the trial court specified that the notes would be helpful 

in guiding its examination of witnesses. 

After a break in the trial of several weeks, the parties reconvened on February 9, 2022, for 

the third day of trial. Mother testified that she was “concerned” about the child’s mental health and 

her ability to communicate her feelings and deal with conflict. Mother emphasized that she and 

father had agreed in their property settlement agreement that they would engage in co-parenting 

counseling and the child would be assessed for therapy. When mother reached out to father about 

counseling, he “ignored” her. Mother felt that father used “his legal custody as a bargaining chip” 

and prevented her from choosing a therapist for the child. Mother did not think that she and father 

had been “effective joint decision-makers” and did not envision matters changing until the child had 

therapy. 

7 The trial court sealed the child’s notes in the record. Nevertheless, the appeal 

necessitates unsealing portions of the child’s notes to resolve some of the issues father has raised. 

Evidence and factual findings below that are necessary to address those assignments of error are 

included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in 

the sealed record, we unseal only those specific facts, finding them relevant to the decision in 

this case. The remainder of the previously sealed record remains sealed.” Levick v. 

MacDougall, 294 Va. 283, 288 n.1 (2017).
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Upon the trial court’s inquiry, mother confirmed that she was not aware of the child’s notes

before the hearing and the child had not shared them with her. Father acknowledged that he 

reviewed the child’s notes following her testimony. Father testified that her notes were “upsetting” 

and did “not reflect” the child that he sees because she had not “shown any hesitation of speaking 

with [him] or opening up to [him].” Referring to an incident mentioned in the notes, father denied 

that he refused to care for the child’s dog. The trial court asked father about another incident in the 

child’s notes regarding her stuffed animal. Father had commented to the child that she was nine 

years old and still had a stuffed animal. The child said that she just liked having it. Father denied 

saying that she could not have the stuffed animal. Father emphasized that his relationship with the 

child is “absolutely not what is in those notes.” After the child testified in January, she visited 

father, who did not ask her “if anything specifically was bothering her” and did not discuss the case 

or her notes with her. The child did not seem “upset” or “nervous.” Father, however, continued to 

call the child every day even though she had testified that she did not want daily telephone calls. 

Father agreed that the child would benefit from counseling. Father claimed that the child 

had not attended therapy yet because of scheduling concerns and indecision on a counselor that was 

covered by insurance. Father further recognized that it would not be in the child’s best interests for 

her to be with him “full-time,” but he wanted to share equally the time that she spent with him and 

mother. 

At the conclusion of all the evidence, the parties presented their closing arguments and 

agreed that father’s employment situation was a material change in circumstances since the last 

court order. Father requested “more time,” and ideally equal time, with the child. Mother asked for 

no changes to father’s visitation. Both father and mother agreed to counseling, but mother argued 

that she was “far better at assessing and meeting the child’s emotional needs” and should be the one 

to “make the decisions” for the child. 
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After hearing all the evidence and argument, the trial court considered the Code § 20-124.3 

factors to assess the best interests of the child. The trial court found that father’s employment and 

household changes had affected the child’s mental condition and “stability factors.” The trial court

further found that based on their history, mother had “a greater ability to accurately assess and meet 

the emotional, intellectual, and physical needs of the child”; however, father had “a lot to offer.” 

The trial court acknowledged that father was “not doing anything objectively that [was] particularly 

wrong.” 

The trial court then considered the child’s preference and “gleaned” from her testimony that 

father was “going a little fast.” The trial court characterized the child’s “pillars of security” as four

relationships or things of importance to the child: her mother, her dog, her stuffed animal, and her 

friends. The trial court found that the child viewed father as “kind of a threat” to her “pillars,”

especially her mother, because she would not have as much time with mother if she visited father 

more often. The trial court also considered the child’s reactions to “innocent” comments that father 

made about the child’s stuffed animal and dog. The trial court found that the child was “very 

sensitive” and had interpreted father’s comments as him “trying to take” away her “pillars of 

security.” 

The trial court disagreed with father that if the child spent more time with him that their 

relationship would improve. The trial court noted that after the child testified that she did not 

want daily phone calls, father “could have dialed back the phone calls,” but he “didn’t alter one 

iota the course of action, even in that very most minimal way.” The trial court considered the 

child’s request to visit father when she wanted and found that the child was not saying that she 

did not want to visit father, but she believed that the visitation changes were “too quick, too 

fast.” The trial court concluded that “for better or for worse,” the child’s “pillars of security 
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[were] being threatened.” The trial court could not “disregard” the child’s feelings and agreed 

with the parties that therapy could help the child and her relationship with father. 

The trial court held that modifying visitation would be “damaging” to the child. The trial 

court further ordered the child to attend therapy with a counselor covered by insurance and of 

“mother’s choosing” to improve the relationship between the child and “both parents, but 

especially with . . . father.” The trial court also held that mother would have “final 

decision-making authority [for the child] with respect to issues of medical care which include 

mental health.” 

Following the trial court’s ruling from the bench, father filed a motion to reconsider. The 

parties appeared before the trial court for a hearing on father’s motion. After hearing arguments, the 

trial court took the matter under advisement and subsequently issued a letter opinion and final order. 

The trial court denied father’s motion to modify custody and visitation and awarded mother with 

“final decision-making authority regarding all decisions about the child’s care which are medical in 

nature, including but not limited to decisions regarding the selection of a therapist for the minor 

child.” Father appeals. 

ANALYSIS

Father challenges the trial court’s custody and visitation rulings. “We review the trial 

court’s decisions on custody and visitation for an abuse of discretion.” Rainey v. Rainey, 74 

Va. App. 359, 376 (2022). “The trial court’s rulings come to us with a presumption of 

correctness.” Id. at 377. “The trial court is presumed to know and correctly apply the law 

‘absent clear evidence to the contrary in the record.’” Id. (quoting Milam v. Milam, 65 Va. App. 

439, 466 (2015)). “The trial court’s decision on factual issues is entitled to great weight and will 

not be disturbed unless plainly wrong or without evidence to support it.” Id. “Our use of this 

deferential standard of review ‘rests on the venerable belief that the judge closest to the contest is 
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the judge best able to discern where the equities lie.’” Id. (quoting Wynnycky v. Kozel, 71 

Va. App. 177, 193 (2019)). “If the trial court’s findings are supported by evidence, the appellate 

court must uphold them even if it would have reached an entirely different conclusion.” Id.

I. Custody and visitation

Father argues that the trial court erred by not modifying the custody and visitation order 

and granting him more time with the child. “In matters of custody, visitation, and related child 

care issues, the court’s paramount concern is always the best interests of the child.” Wynnycky, 

71 Va. App. at 193 (quoting Bedell, 70 Va. App. at 504). “The trial court has broad discretion in 

making the decisions necessary to guard and to foster a child’s best interests.” Id. (cleaned up) 

(quoting Eaton v. Dep’t of Soc. Servs., 66 Va. App. 317, 324 (2016)).

“In determining whether a change in custody is warranted, the trial court applies a twopart test: (1) whether a change of circumstances has occurred since the most recent custody 

award; and (2) whether such a change would be in the best interests of the child.” 

Khalid-Schieber v. Hussain, 70 Va. App. 219, 228 (2019) (quoting Parish v. Spaulding, 26 

Va. App. 566, 570-71 (1998)). The parties agreed that there had been a change of circumstances 

since the last visitation order due to changes in father’s employment and household. Therefore, 

the only issue before the trial court was whether a modification of father’s custody and visitation 

was in the child’s best interests.

A. Best interests

Code § 20-124.3 includes a list of factors that a trial court “shall consider” when

determining the “best interests of a child” for custody and visitation. Armstrong v. Armstrong, 71 

Va. App. 97, 104 (2019) (quoting Code § 20-124.3). A trial court, however, is not “required to 

quantify or elaborate exactly what weight or consideration it has given to each of the statutory 

factors.” Id. (quoting Sargent v. Sargent, 20 Va. App. 694, 702 (1995)).
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Father asks this Court to reconsider the evidence presented regarding the Code 

§ 20-124.3 factors. He contends that the trial court erred in its interpretation of the child’s 

testimony and gave it “improper weight.” The trial court heard three days of evidence, including 

testimony from mother and father, the child, and family friends and neighbors, including the 

child’s paternal grandmother and aunt, father’s girlfriend, and the child’s school counselor. It 

then considered each of the statutory factors in detail. The trial court focused on the child’s 

mental condition and her need for therapy, each parent’s “ability to accurately assess the 

emotional, intellectual, and physical needs of the child,” their lack of cooperation in seeking 

therapy for the child, and the reasonable preference of the child. The trial court noted that the 

child’s preference was “only one factor” and “not dispositive.” The trial court found that the 

child believed that father’s request for changes in visitation was “too quick, too fast” after his 

return from Iraq. Thus, after considering all the evidence, the trial court found that it was in the 

child’s best interests to “maintain” the existing custody and visitation arrangements. 

At the hearing on father’s motion to reconsider, the trial court further explained that 

mother and father were “two compelling parents” and it did not find that father was “lacking 

qualities or being a bad parent.” The trial court, however, focused on the best interests of the 

child. 

There is credible evidence in the record that supports the trial court’s finding that it was 

not in the child’s best interests to modify custody or visitation. “Because the record contains 

evidence in support of the court’s findings, we are precluded from retrying the facts or reweighing 

the factors.” Armstrong, 71 Va. App. at 105. “Where the record contains credible evidence in 

support of the findings made by [the] court, we may not retry the facts or substitute our view of the 

facts for [that] of the trial court.” Id. (alteration in original) (quoting Bedell, 70 Va. App. at 504); 
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see also Rainey, 74 Va. App. at 391 (“It is not the function of this Court to substitute its views for 

that of the trial court, even if we might have viewed the evidence differently.”).

B. Basis of trial court’s ruling

Father claims that the trial court “improperly relied” upon its personal beliefs in 

determining the child’s best interests. He refers to the trial court judge’s “general observation” 

from his time on the bench and in private practice that children “in a 50-50 [custody] situation

. . . never have a real secure home, despite both parents being a great place.” Father claims that 

the trial court used this “general observation” to “impermissibly” form a basis for its decision to 

deny father shared physical custody. “It is, of course, true that a factfinder must base its decision 

on evidence presented . . . . However, it is equally true that factfinders, whether jurors or trial 

judges, do not abandon their common sense or experience in performing their function.” Wynnycky, 

71 Va. App. at 203.

Father also argues that the trial court determined the child’s “pillars of security” based on 

its own beliefs and not on the child’s testimony. As the factfinder, the trial court “may draw 

inferences from the evidence so long as those inferences do not ‘defy logic and common sense.’” 

Id. (quoting Fox Rest Assocs., L.P. v. Little, 282 Va. 277, 283 (2011)). After hearing all the 

evidence, the trial court inferred that the child had relied on mother for stability and determined that 

it was in the child’s best interests to maintain the status quo with father’s visitation. As noted 

above, there is credible evidence in the record to support the trial court’s custody and visitation 

rulings. The court therefore did not improperly rely on its personal beliefs or facts not in evidence 

in coming to its custody decision.
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C. Future modification

Father asserts that the trial court’s ruling offered him “no mechanism for any future 

evaluation or determination of whether [the child] would be ready in the future for additional time” 

with father. The trial court, however, had “expressed [its] hope that there would be a 

transitionary period” and that “things could get into a situation where he had more time.” 

Nevertheless, the trial court first required the child to attend therapy and work on her 

relationships with both parents, but especially father. Furthermore, “under Code § 20-108, the 

parties and the court retain the ability to modify visitation with minor children in the future. This 

statute is an avenue for the non-custodial parent to seek increased visitation in the event the 

custodial parent is not accommodating.” Rainey, 74 Va. App. at 388-89. Thus, father has a 

mechanism to seek future modification of custody and visitation.

II. Decision-making authority

Father argues that the trial court erred in awarding mother final decision-making authority 

over the child’s medical matters.

A. Notice

Father contends that mother “never placed decision-making authority at issue.” He asserts 

that he was “unaware that his right to help decide [the child’s] medical treatment was at risk.” Both 

parties, however, had requested “tie-breaking authority” in their respective motions to modify 

custody and visitation. Both also had requested “any further relief as [the court] deems just and 

appropriate.”

In D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 336 (2005), we found that the trial court

properly gave one parent sole authority to choose the child’s pediatrician, noting that “[a]lthough 

[one party] did not request the sole right to select [the child’s] pediatrician in her pleadings, she 

nonetheless prayed that the court grant any other relief it deemed just.” This Court found that “the 
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trial court did not err in fashioning ‘an appropriate remedy that comport[s] with the best interest of 

the children, even [though it was not] specifically requested by the mother or father.’” Id. at 338

(alterations in original) (quoting Cloutier v. Queen, 35 Va. App. 413, 424 (2001)).

As in D’Ambrosio, father was on notice that medical decision-making authority was subject 

to potential modification because of the parties’ pleadings and arguments at trial. Throughout the 

proceedings, mother discussed her efforts to obtain therapy for the child and father’s refusal to 

cooperate. It is clear from the record that the issue of making decisions regarding the child’s 

therapy was before the trial court. 

B. Best interests

Father also argues that it was not in the child’s best interests for mother to have sole 

decision-making authority regarding the child’s medical care. He claims that mother had “a pattern 

of . . . unilaterally making poor decisions about [the child’s] health and upbringing” and often failed

to notify him about the child’s health or illnesses she had. Father contends that the trial court’s 

decision would prevent him “from having the relevant, necessary information about [the child] in 

real time, which is against her best interests.” 

Code § 20-124.1 authorizes a trial court to modify joint legal custody when the court deems 

it to be “in the best interest of the child.” The trial court found that therapy would be beneficial for 

the child and her relationship with her parents, especially father. The trial court further found that 

there was not “a good reason why this child did not go to therapy.” Mother had testified that she 

believed that father used “his legal custody as a bargaining chip” and prevented her from taking the 

child to therapy. In order to break this impasse regarding therapy for the child, the trial court

ordered that mother would be the one making medical decisions for the child. We find no abuse of 

discretion in the trial court’s resolution of the problem presented by the parties’ inability to resolve 

their differences. “Custody and visitation disputes between two fit parents involve one parent’s 
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fundamental right pitted against the other parent’s fundamental right. The discretion afforded trial 

courts under the best-interests test, Code § 20-124.3, reflects a finely balanced judicial response to 

this parental deadlock.” Griffin v. Griffin, 41 Va. App. 77, 83 (2003). Thus, the trial court did not 

err in granting mother decision-making authority regarding the child’s medical care.

III. The child’s testimony

Father argues that the trial court erred by allowing the child to testify in open court because 

it was not in her best interest. He emphasizes that the school counselor testified that the child felt 

“anxious and nervous” about testifying. Further, he argued during the trial that there were other 

witnesses who could testify about the child and her relationship with mother and father. 

“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.” Brown v. Burch, 30 Va. App. 670, 680 (1999) (alteration in original)

(quoting Haase v. Haase, 20 Va. App. 671, 680-81 (1995)). “[I]n 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.” Id. at 681 (quoting Haase, 20 Va. App. at 682). 

“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.” Id. (quoting Haase, 20 

Va. App. at 682). “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. (quoting Haase, 20 Va. App. at 682).

Here, the trial court explained at the outset that its practice was for children to testify in open 

court, as opposed to in chambers. Mother offered for a counselor to testify about the child’s 
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preference, but father did not consent to that compromise. Father argued that it was not in the best 

interests of the child to testify, and he relied on the school counselor’s testimony that the child was 

“nervous” about testifying. Father’s argument that testifying would be “detrimental” to the child 

was “speculative.” See Haase, 20 Va. App. at 680. The trial court found that the child’s 

nervousness was “understandable” but did not prevent her from appearing in court. 

Once the child appeared in open court, the trial court questioned her and found that she was 

of sufficient maturity and understanding to express her views regarding the situation. Neither 

mother nor father objected to the trial court’s finding regarding the child’s competency. The trial 

court allowed the child to testify and heard that she preferred to live with mother and visit father 

when she wanted. 

At the conclusion of the child’s testimony, the trial court found that the child seemed 

“comfortable in the proceedings” and it was “helpful to see what the child’s view is.” The trial 

court further found that it did not appear that anyone “coached” the child when she testified. There 

is credible evidence in the record to support the trial court’s finding that the child was of sufficient 

age and maturity to testify and the trial court did not err in having her testify in open court.

IV. The child’s notes

A. Review and admission of the child’s notes

Father argues that the trial court erred by “improperly” reviewing the child’s notes and 

admitting them as a demonstrative exhibit. He emphasizes that “neither party proffered the notes as 

an exhibit” and the child did not “request to rely upon her notes to refresh her recollection” when 

she testified. 

The child testified as a witness on the second day of trial. At the end of the second day, after 

the child exited the courtroom, the trial court informed the parties that it had made a copy of the 

child’s notes and would admit them as a demonstrative exhibit because the child “did adopt” some 
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of her notes as testimony. The trial court clarified that “demonstrative means that it has no 

evidentiary value in and of itself” and that the notes would only be used as “a guide to ask some 

questions.” 

Father, however, did not object when the trial court asked the child if she wanted to look at 

her notes. He also did not object when the child handed the notes to the judge or when the judge 

indicated that he wanted to “take a quick look” at them. Finally, though father objected to the 

admission of the child’s notes when the trial court indicated it intended to receive them as a 

“demonstrative exhibit,” father did not offer a basis for his objection, even after the trial court 

invited counsel to “protect” the record. Further, when the third day of trial recommenced several 

weeks later, after the parties had had a chance to review the notes, father still did not offer a basis 

for objecting to the trial court receiving the notes as a demonstrative exhibit.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection 

was stated with reasonable certainty at the time of the ruling, except for good cause shown or to 

enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of this rule ‘is to require 

that objections be promptly brought to the attention of the trial court with sufficient specificity that 

the alleged error can be dealt with and timely addressed and corrected when necessary.’” Yazdani v. 

Sazegar, 76 Va. App. 261, 276 (2022) (quoting Bazemore v. Commonwealth, 42 Va. App. 203, 218 

(2004)).

In addition, father’s argument that the child did not use the notes to refresh her recollection 

was not raised during the trial. “The Court of Appeals will not consider an argument on appeal 

which was not presented to the trial court.” Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 

Va. App. 296, 315 (2013) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)). 

Father “has not asked that we apply the ‘good cause’ or ‘ends of justice’ exceptions to Rule 

5A:18, and we decline to do so sua sponte.” Wardell Orthopaedics, P.C. v. Colonna’s Shipyard, 
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Inc., 72 Va. App. 296, 303 (2020). Accordingly, we will not consider father’s assignment of 

error regarding the trial court’s review or admission of the child’s notes.

B. Reliance on the child’s notes

Father argues that the trial court erred by admitting the child’s notes as a demonstrative 

exhibit and then relying on them substantively to determine the child’s best interests. 

Father objected to the trial court referring to language in the child’s notes when it issued its 

ruling by filing a motion to reconsider. In his motion, father clarified his objection, noting that 

although the trial court had promised not to assign any evidentiary weight to the child’s notes, the 

trial court “incorrectly relie[d] on the contents in [the child’s] notes.” Father pointed specifically to 

the trial court’s reliance on the child’s feelings about her stuffed animal that were expressed in the 

notes. On brief, father argues that “[w]hile [the child] wrote about [her stuffed animal] in the 

notes, there is no supporting testimony or admissible evidence to justify the trial court’s finding” 

that the stuffed animal constituted the child’s third “pillar of security.” Father avers that the trial 

court’s reliance on the significance of the child’s stuffed animal must have been improperly 

taken from the notes. Father takes issue with the trial court’s conclusion that the child felt 

“threatened” by father’s insistence on spending more time with her and that altering the custody 

order would impinge upon three of the child’s pillars of security: (1) the child’s relationship with 

mother, (2) the child’s dog Bandit, and (3) the child’s stuffed animal.

Father claims that the trial court “erred by basing its ruling on written statements within the 

notes to which [the child] never testified.” He asserts that the trial court’s “supplementation of the 

record with knowledge gleaned from the inadmissible notes’ contents that were never testified to by 

[the child] is an abuse of discretion that warrants its decision to be set aside.” To support his 

assertion, father argues that the child’s testimony “did not adopt or incorporate the [circuit] court’s 

supposed findings” about the child’s “perception” of father when the child’s dog “supposedly 
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needed to see a veterinarian.” The record, however, reflects that on the third day of the trial, after 

the child testified, father was the one who raised the issue of the child’s notes. He explained that he 

had reviewed the child’s notes and found them “upsetting” because they did not reflect the child that 

he knew and saw on visitations. After father testified, the trial court asked him why he thought 

“some of these things” that the child had said were “inconsistent” with what he saw.8 In response, 

father volunteered an explanation about a “specific event” in the child’s notes. Father testified 

about an incident when he did not believe that it was necessary to cancel their plans to take the dog 

to a veterinary appointment that mother had scheduled without consulting him. Father described the 

child’s statement of him refusing to take the dog to the vet as a “mischaracterization of the event.” 

Father also asserts on appeal that the trial court’s findings reflect its adoption of the child’s 

notes, not her testimony, about her stuffed animal. The record, however, shows that the trial court

used the notes as “kind of a guide to ask some questions” and did so by asking father about the 

child’s stuffed animal and whether he questioned her about why she still had it. Father did not 

object to the court’s question, but instead explained that he simply made a comment that she was 

nine years old and still had the stuffed animal. In doing so, the trial court noted that the child had a 

negative reaction to his comment.9 In its ruling, the trial court discussed the incidents about the dog 

8

“Admission of items of demonstrative evidence to illustrate testimonial evidence is . . . a 

matter within the sound discretion of a trial court.” Jackson v. Commonwealth, 267 Va. 178, 203 

(2004) (quoting Mackall v. Commonwealth, 236 Va. 240, 254 (1988)). As noted above, father did 

not properly object to the trial court’s decision to receive the child’s notes as a “demonstrative 

exhibit” to “guide” its examination of the witnesses. Therefore, we do not address the propriety of 

the trial court’s use of the notes to prompt certain questions to the witnesses at trial.

9 Father also attempts to create the appearance of impropriety by pointing out that the 

trial court concluded that the child felt her “pillars of security” were being “threatened” by 

father, notwithstanding the fact that the child never actually used the words “threat,” “pillars of 

security,” or any variation of either in her testimony. This argument is misguided. The trial 

court was permitted to conclude, based on ample evidence (including father’s own testimony) 

contained in the record, that the child was concerned about changing her current custody 

situation and spending more time with father. The trial court’s use of a word to describe or 

characterize how it views a particular factual issue—here, that child felt her custody situation 
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and the stuffed animal to show how the child’s perception of the events differed from father’s view. 

This ruling was therefore not based on the child’s notes, but on testimony contained in the record. 

The trial court confirmed this, stating that father “views what the child said in her testimony as 

being inconsistent with what is his experience. . . . That’s his point of view,” thus reinforcing the 

notion that the trial court relied on the child’s testimony, as well as father’s testimony, not what was 

contained in her notes. The trial court therefore did not err in basing its custody decision, in part, on 

the child’s perception that her pillars of security were being threatened by father.

V. Counsel’s comments

Father argues that the trial court “improperly considered the factual statements of opposing 

counsel, effectively giving evidentiary value to those statements.” Although father discusses in his 

brief the various times throughout the three-day trial and at the hearing on his motion to reconsider 

when counsel made extraneous comments, he failed to show where he preserved his argument that 

the trial court “improperly” relied on those statements in its ruling. Rule 5A:18. “One of the tenets 

of Virginia’s jurisprudence is that trial counsel must timely object with sufficient specificity to 

an alleged error at trial to preserve that error for appellate review.” Perry v. Commonwealth, 58 

Va. App. 655, 666 (2011). “The purpose of Rule 5A:18 is ‘to ensure that the trial court and 

opposing party are given the opportunity to intelligently address, examine, and resolve issues in 

the trial court, thus avoiding unnecessary appeals.’” Friedman v. Smith, 68 Va. App. 529, 544 

(2018) (quoting Andrews v. Commonwealth, 37 Va. App. 479, 493 (2002)).

and family dynamic were being “threatened”—is not error. Furthermore, given the child’s 

evident difficulty in confiding her feelings to her father, the trial court’s use of the notes to guide 

questions was not improper. “Absent clear evidence to the contrary in the record, the judgment 

of a trial court comes to us on appeal with a presumption that the law was correctly applied to the 

facts.” Yarborough v. Commonwealth, 217 Va. 971, 978 (1977). “[W]e will not fix upon 

isolated statements of the trial judge taken out of the full context in which they were made, and 

use them as a predicate for holding the law has been misapplied.” Id. Here, the trial court’s use 

of the word “threatened,” notwithstanding the fact that the child did not use that word 

specifically in her own testimony, was not error.
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Moreover, “in a bench trial, the trial judge is presumed to disregard prejudicial or 

inadmissible evidence, and this presumption will control in the absence of clear evidence to the 

contrary.” Cousett v. Commonwealth, 71 Va. App. 49, 61 (2019) (quoting Purvis v. 

Commonwealth, 31 Va. App. 298, 309 (2000)). Father failed to rebut the presumption and provide 

evidence showing that the trial court relied on counsel’s “continuous commentary and testimonial 

remarks.” “Thus, in the absence of affirmative evidence to the contrary, we are bound by the 

presumption that the trial court judge, acting as the finder of fact in this case, properly and 

separately considered only the evidence relevant” to the case. Id. at 63.

VI. Appellate attorney fees and costs

Mother asks this Court to award her attorney fees and costs incurred on appeal. See 

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695 (1996). “The decision of whether to award 

attorney’s fees and costs incurred on appeal is discretionary.” Koons v. Crane, 72 Va. App. 720, 

742 (2021) (quoting Friedman, 68 Va. App. at 545). Although mother prevailed, we do not find 

that father’s appeal was “‘frivolous or lacked substantial merit,’ or that the ‘equities of the case’ 

favor an award.” Id. at 742-43 (quoting Rule 5A:30(b)(3)-(4)). Accordingly, we deny mother’s 

request.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. In accordance with Code 

§ 8.01-428(B), we remand the matter for the trial court to address and correct any clerical errors in 

the custody and child support order regarding mother’s residential address and father’s work 

telephone number.

Affirmed and remanded.