COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Humphreys and Millette 

Argued at Chesapeake, Virginia 

THEOPHYLIS ARTIS 

 OPINION BY 

v. Record No. 1529-07-1 JUDGE ROBERT J. HUMPHREYS 

JULY 22, 2008 

KRYSTAL R. JONES 

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Randall D. Smith, Judge 

 Richard E. Garriott, Jr. (Kira A. Ligato; Clarke, Dolph, Rapaport, 

Hull, Brunick, and Garriott, P.L.C., on brief), for appellant. 

 Allyson Denise Lee for appellee. 

 Theophylis Artis (“father”) appeals an order awarding primary physical custody of his 

son, J.H., to J.H.’s mother, Krystal Jones (“mother”). Father argues that (1) the trial court did 

not adequately communicate the basis of its decision either orally or in writing, as required by 

Code § 20-124.3, and (2) the evidence was insufficient to support the finding that awarding 

primary physical custody to mother was in J.H.’s best interests. For the following reasons, we 

agree with father that the trial court did not sufficiently communicate the basis of its decision to 

the parties. We reverse and remand for further proceedings consistent with this opinion. 

BACKGROUND 

On appeal, we must view the evidence, and all reasonable inferences flowing from the 

evidence, in a light most favorable to mother as the party prevailing below. Congdon v. 

Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). “That principle requires us to 

‘discard the evidence’ of [father] which conflicts, either directly or inferentially, with the 
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evidence presented by [mother] at trial.” Id. (quoting Wactor v. Commonwealth, 38 Va. App. 

375, 380, 564 S.E.2d 160, 162 (2002)). So viewed, the evidence proved the following. 

Mother and father began dating in 1998. J.H. was born in 2002. Mother and father never 

married, and father ended the relationship after learning that mother was pregnant. Mother also 

has a son and a daughter from previous relationships. Her son was a fifteen-year-old high school 

student at the time of trial, and her daughter was a twenty-year-old student at Old Dominion 

University. Both children love their younger half-brother J.H., and they all have a close 

relationship with their mother. In the fall of 2002, mother began dating another man who was 

married at the time, but was already separated from his wife with a divorce pending. 

The parties’ relationship began to deteriorate when J.H. was around one year old, and the 

relationship has remained hostile ever since. For example, father has made numerous allegations 

of child abuse against mother to Child Protective Services (“CPS”), none of which CPS has acted 

upon. Father has also been both physically and verbally abusive toward mother in the past. One 

particular flashpoint for hostilities between the parties has been when the parties meet to 

exchange J.H. In March 2005, mother and father were exchanging J.H. at a convenience store, 

and a friend of father’s was also present with his child. After receiving J.H., mother asked father 

to move his car so that she could leave. Father then placed J.H. in the back of his friend’s car so 

that he might move his car. Mother then apparently phoned the police and reported that father 

was kidnapping J.H. Father called mother a “bitch” and a “whore” in front of J.H. and mother’s 

other children, who were also present. 

On October 20, 2004, the Chesapeake Juvenile and Domestic Relations District Court 

(“J&DR”) entered an order establishing joint legal custody and shared physical custody of J.H. 

Prior to the entry of this order, there had been no formal custody arrangement, but J.H. had spent 

the majority of his time with mother. This order also directed the parties to seek parental 
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counseling to attempt to resolve the difficulties between them. Mother was uncooperative in 

seeking counseling, and was held in contempt of court once for not cooperating with this order. 

In May 2005, the parties began seeing Richard Tavolucci (“Tavolucci”), a parental 

counselor. Tavolucci stated that both mother and father were good parents and that the two 

should share joint physical custody equally, thereby minimizing the number of times the parties 

would exchange J.H. and ensuring that the two would have less opportunity for hostilities to 

ensue. J.H. reported to Tavolucci that he was “terrified” of returning to mother’s house from 

father’s because mother always spanked him, and had also punched him in the back on at least 

one occasion. When Tavolucci asked J.H. if father had hit him, J.H. replied that he had not, but 

that mother had told him to say that he had. 

In October 2005, mother also began taking J.H. to see Margaret McDowell 

(“McDowell”), a licensed clinical social worker and “play therapist,” who provided J.H. with 

dolls and other playthings to act out various scenarios from his life. McDowell opined that one 

parent should have primary custody because it was detrimental to J.H.’s well-being to be equally 

exposed to two different parenting styles. Despite only meeting with father for one counseling 

session, McDowell suggested that, based on her assessments, mother was the more “nurturing” 

and “protective” parent and that J.H. had a greater emotional attachment to mother than to father. 

However, McDowell did not specifically recommend that mother have primary physical custody. 

On March 22, 2006, in response to father’s petition to modify custody, the J&DR 

awarded joint legal and physical custody to mother and father, with each parent having two 

weeks of continuous physical custody. Mother appealed to the Circuit Court of the City of 

Chesapeake (“trial court”). 

At trial de novo over three days in September and October 2006, the parties presented the 

evidence referenced above, and Tavolucci and McDowell both presented their above-referenced 
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opinions. Mother and mother’s older children all testified that since the beginning of the 

two-week continuous custody arrangement, J.H. had started to cry whenever he was preparing to 

go back to father’s house. Various witnesses, including J.H’s teachers, testified that J.H.’s 

behavior became more aggressive, including hitting other students and using profanity, after the 

imposition of the custody arrangement. 

The trial court apparently found neither parent’s accusations against the other parent to be 

credible, stating that “if one of these parties had been bitten by a snake and the other party is 

coming towards them to cut the poison out, the parties would describe it as they tried to attack 

me with a knife and kill me.” The court also found McDowell’s opinion regarding J.H. more 

credible than Tavolucci’s. 

The trial court did not make a ruling orally, but, after finding that a change of 

circumstances had occurred for J.H. since the custody order from October 2004, stated: 

Now we go to the factors contained in [Code §] 20-124.3, which 

delineates all the factors to determine what would be in the best 

interest of the child. 

* * * * * * * 

You know, . . . there’s both good and bad that both mom and dad 

bring to the situation. So I think I’m going to make - I’ve made a 

lot of notes . . . . I’ll go back and review those notes and get a 

decision out. 

* * * * * * * 

It seems to the Court . . . one of [the parties] will be the primary 

custodian and the other one will have a relationship as best [as 

possible] under the circumstances. 

On February 5, 2007, the trial court issued its ruling in a letter opinion, stating, in 

pertinent part: 

 The Court finds that the age of [J.H.] (2 at the time of the initial 

order and close to the age to begin school now), the difficult 

relationship of the mother and father--marked by constant distrust 
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of each other, complete lack of cooperation between the two 

regarding any consistency in [J.H.]’s development or schedule, and 

in the opinion of the Court no probability exists that mother and 

father will be able to communicate or cooperate in [J.H.]’s rearing, 

establishes a change in circumstance. The Court also finds that 

because [J.H.] is displaying difficulties due to the inconsistent 

parenting practices of mother and father combined with their 

contempt of each other, that [J.H.]’s best interest would be met by 

a change in the order of October 20, 2004. 

 The Court then pursuant to Virginia Code Section 20-124.2[,] 

giving primary consideration to the child’s best interest considered 

all factors contained in Code Section 20-124.3. 

The trial court then awarded primary physical custody to mother and granted reasonable 

visitation rights to father. Father timely appealed to this Court. 

ANALYSIS 

I. Compliance with Code § 20-124.3 

Father first argues that the trial court did not adequately communicate the basis of its 

custody award to the parties as required by Code § 20-124.3. We agree. 

Code § 20-124.3 lists ten factors a trial court must consider when deciding the best 

interests of a child for determining custody and visitation of a child. The statute concludes by 

directing that the trial court “communicate to the parties the basis of [its] decision either orally or 

in writing.” We have interpreted this statute as “requir[ing] the trial court to identify the 

fundamental, predominating reason or reasons underlying its decision.” Kane v. Szymczak, 41 

Va. App. 365, 372-73, 585 S.E.2d 349, 353 (2003). “While communicating the ‘basis’ of the 

decision does not rise to the level of providing comprehensive findings of fact and conclusions of 

law, it does mean that the trial court must provide more to the parties than boilerplate language 

or a perfunctory statement that the statutory factors have been considered.” Lanzalotti v. 

Lanzalotti, 41 Va. App. 550, 555, 586 S.E.2d 881, 883 (2003). ‘“The trial court must provide a 

case-specific explanation (one that finds its contextual meaning from the evidence before the 
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court) of the fundamental, predominating reason or reasons for the decision.’” Id. (quoting 

Kane, 41 Va. App. at 373, 585 S.E.2d at 353). “The statute requires ‘an express communication

to the parties of the basis for its decision.’” Id. (quoting Kane, 41 Va. App. at 373, 585 S.E.2d at 

353) (emphasis in original). A trial court that ‘“fails to provide at least some of the steps in [its] 

thought process leaves [it]self open to the contention that [it] did not in fact consider the required 

factors.’” Woolley v. Woolley, 3 Va. App. 337, 344, 349 S.E.2d 422, 426 (1986) (quoting 

Campolattaro v. Campolattaro, 502 A.2d 1068, 1075 (Md. Ct. Spec. App. 1986)). 

At the conclusion of trial, the trial court stated orally that it found McDowell, who 

recommended a primary caretaker and stated that mother was more “nurturing” than father, more 

credible than Tavolucci. However, this is a credibility determination by the trial court, and not a 

communication to the parties as to why it ruled as it did. At no point did the trial court state why 

placement with mother would be in J.H.’s best interests, nor did it state why the factors 

contained in Code § 20-124.3 influenced its decision. In fact, the record clearly shows that the 

trial court had not yet reached a decision at this point. 

In its subsequent letter opinion, the trial court found that a change of circumstances had 

occurred, due to the “difficult relationship of the mother and the father--marked by constant 

distrust of each other, complete lack of cooperation between the two regarding any consistency 

in [J.H.]’s development or schedule, and . . . no probability exists that mother and father will be 

able to communicate or cooperate in [J.H.]’s rearing[.]” The trial court then stated: “because 

[J.H.] is displaying difficulties due to the inconsistent parenting practices of mother and father 

combined with their contempt of each other, that [J.H.]’s best interest would be met by a change 

in the order of October 20, 2004.”1

 

 1

 At oral argument, counsel for the appellee asserted that subsequent to the issuance of 

the letter opinion, a hearing was held during which the circuit court supplemented the rationale 

for its decision. However, no transcript, written statement of facts, or supplemental order with 
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Thus, the trial court found that a change of circumstances had occurred, but did not 

explain how the factors contained in Code § 20-124.3 applied to determine how the best 

interests of the child would be served by the specific change that it ordered. Although this is 

more than a mere “perfunctory statement that the statutory factors have been considered[,]” 

Lanzalotti, 41 Va. App. at 555, 586 S.E.2d at 883, this statement fails to communicate a 

case-specific explanation as to why the best interests of J.H. favor placement with mother, 

rather than father. As such, we hold that the trial court did not sufficiently “communicate to the 

parties the basis of [its] decision either orally or in writing,” as mandated by Code § 20-124.3. 

II. Sufficiency of the Evidence 

Father next argues that the evidence was insufficient to support the trial court’s finding 

that awarding primary physical custody of J.H. to mother was in J.H.’s best interests. Having 

held that the trial court did not adequately communicate the basis of its decision to the parties as 

required by Code § 20-124.3, we do not address the sufficiency of the evidence on appeal. 

In Robinson v. Robinson, 50 Va. App. 189, 648 S.E.2d 314 (2007), we addressed Code 

§ 20-107.1(F)’s requirement that a trial court provide written findings and conclusions of law 

identifying the factors in Code § 20-107.1(E) which support the trial court’s decision on a 

spousal support award. In doing so, we discussed our previous holding in Woolley. 

Woolley held that “when a trial court failed to make factual findings or present any explanation 

of the circumstances that influenced its decision regarding spousal support, we could examine 

the record to determine if the trial court’s decision was supported by evidence relevant to the 

statutory factors.” Robinson, 50 Va. App. at 195, 648 S.E.2d at 317 (citing Woolley, 3 

Va. App. at 345, 349 S.E.2d at 427). However, as noted in Robinson, the General Assembly 

 

respect to such hearing has been made a part of the record before us. It is the duty of the parties 

to provide us with a record sufficiently complete to support their legal arguments. Haugen v. 

Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 42-43, 645 S.E.2d 261, 270 (2007). 
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amended the statute in 1998 to require the trial court to make the written findings mentioned 

above. Because the statute as amended did not contain a provision permitting such review by 

us, and specifically required the trial court to make written findings stating the basis for its 

decision, we concluded that the statutory amendment superseded our earlier precedent allowing 

us to “examine the record to determine if the decision was supported by evidence relevant to the 

[statutory] factors.” Id. (citing Woolley, 3 Va. App. at 345, 349 S.E.2d at 427). Accordingly, 

we remanded the case to the trial court for reconsideration of the spousal support award based 

on the existing record. Id. at 196, 648 S.E.2d at 317. 

The same rationale applies here in the context of Code § 20-124.3. In 1999, the General 

Assembly amended Code § 20-124.3 to require the trial court to “state the basis for the decision 

either orally or in writing.” Kane, 41 Va. App. at 371, 585 S.E.2d at 352. Prior to this 

amendment, “the statute did not expressly require the trial court to elaborate on its findings or, 

for that matter, to provide any explanation for its decision.” Id. This amendment, like that of 

Code § 20-107.1(F), contains no provision permitting an appellate court to review the record for 

evidence supporting the trial court’s decision if the trial court does not communicate the basis of 

its decision as required by the statute. Accordingly, we refrain from reviewing the record 

ourselves. Instead, we remand the case to the trial court for a reconsideration of its custody 

award based on the existing record. See Robinson, 50 Va. App. at 196, 648 S.E.2d at 317. 

Because the record before us does not indicate that the trial court adequately 

communicated the basis of its decision to the parties, we remand to the trial court for 

reconsideration of its custody award based consistent with this opinion. 

Reversed and remanded.