COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

LEE TREY BOSTICK 

 OPINION BY 

v. Record Nos. 2925-95-4 and JUDGE ROSEMARIE ANNUNZIATA 

 0104-96-4 NOVEMBER 26, 1996 

SHANNON T. BOSTICK-BENNETT 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Thomas S. Kenny, Judge 

 Peter M. Fitzner (Shoun & Bach, P.C., on 

briefs), for appellant. 

 (James B. Toohey, guardian ad litem for 

Savannah Ashley Bostick, on brief). 

 No brief or argument for appellee. 

 Appellant, Lee Trey Bostick (father), was granted a divorce 

from appellee, Shannon T. Bostick-Bennett (mother), on the ground 

of adultery. Following a hearing on father's motion held 

September 5 and 6, 1995, the court awarded him sole physical 

custody of the parties' minor child (child). However, the court 

denied father's request to remove the child from the state. 

 Approximately five weeks after the hearing, father gave 

written notice of his intention to relocate to North Carolina 

with the child. On motion of the child's guardian ad litem, a 

second hearing on the removal issue was held in November 1995. 

The court again denied father's request to remove the child from 

the state, finding the circumstances had not changed since its 

September ruling. The guardian ad litem's motion to reconsider 
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the court's ruling was likewise denied. 

 Father appeals both the trial court's September and November 

rulings. We find no error in the trial court's decision to deny 

father's request to remove the child from Virginia and affirm. 

 I. 

 Following the hearing in September 1995, the court awarded 

sole custody to father and outlined a specific and extensive 

visitation plan for mother. The court found the case to be a 

close one. With the exception of two statutory factors, it found 

the evidence on custody in equipoise. 

 First, the court found that the "degree of stability" mother 

could provide the child was not equal to that which father could 

provide. See Code § 20-124.3(3). While the court found that 

mother had "remarkable" success in establishing a home and a good 

relationship with the child, notwithstanding "very difficult" 

circumstances, it expressed concern about the nature and 

uncertainties of her job and about her "unrealistic" plans for 

caring for the child while she worked. The court found that 

father could provide the child a more stable, structured 

environment. 

 Second, the court found mother more likely than father to 

actively support the child's contact and relationship with the 

other parent. See Code § 20-124.3(6). The court stated that 

father's efforts, "[w]ith very limited exceptions," were focused 

on curtailing mother's access to the child. It found that father 
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had unfairly obtained an ex parte custody order before the 

custody hearing to retrieve the child from Kentucky where mother 

had taken the child with father's prior acquiescence.1 The court 

also took particular note that father had willingly incurred 

expenses totalling approximately $30,000 to employ a private 

investigator "to spy on every visitation that [mother] had with 

her daughter." The court described the intensity of father's 

surveillance efforts as "outrageous." It found that father was 

focused, not on assuring the safety of the child, as he 

professed, but on "winning" the case at the expense of wife's 

privacy. The gravity and materiality of the court's concern on 

this issue is underscored by the court's statement that its 

finding was nearly sufficient to result in an award of custody to 

mother. 

 Nonetheless, the court found it in the best interests of the 

child to award sole custody to father on the ground that father 

could provide a more stable environment. However, the court 

denied father's request to remove the child from Virginia and 

relocate her in North Carolina. As its reason, the court stated, 

"I want both parents to be involved, actively, in the life of 

this child, and I want that involvement on a regular basis. 

Perhaps because you are such different people . . . I want you 

 

 1 In his August 1995 report, the guardian ad litem found 

that father had made "substantial misrepresentations" as to the 

parties' agreement concerning mother and the child's departure in 

order to obtain the ex parte order. 
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both to be actively involved on a regular basis as she is growing 

up." The court further ordered the parties to give thirty days' 

notice of any intention to relocate, stating that the child was 

not to be removed from the state if an objection was noted. 

 At the November hearing upon his notice to relocate, 

father's evidence established that he had "developed a concrete 

plan for his relocation to North Carolina." The plan included a 

job offer with Blockbuster in Charlotte, North Carolina, as an 

assistant manager, with benefits and potential for advancement, 

but at a yearly salary $2500 less than his earnings in Northern 

Virginia. Father testified that the lower cost of living in 

Charlotte would mitigate the effects of a lower salary. He had 

rented a home near Charlotte, which he planned to share with his 

mother and brother, and proposed a visitation schedule which 

would allow, inter alia, mother to take the child one week a 

month. He proposed that the parties meet half way between 

Charlotte and Northern Virginia to transfer the child. Father 

reasoned that his plan would allow mother more time with the 

child and would cut down on the cumulative miles driven in 

accommodating the visitation schedule. 

 At the November hearing, there was also evidence that, 

shortly after the September hearing, mother had lost her place of 

residence for failure to pay rent, had incurred increased debt, 

had lost her job, and had missed several visits with the child 

because she could not afford to repair her vehicle or purchase 
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another. The evidence also showed that mother had recently 

remarried and that her spouse was a marine stationed at Quantico, 

Virginia, where they expected to reside for the foreseeable 

future; that mother was pregnant; and that the couple had 

obtained financial counseling and were making efforts to 

stabilize their financial situation. The court stated that it 

was "very impressed" with mother's new husband. On balance, the 

court found that since the September hearing, mother's life 

"really has become much more stable." 

 At the November hearing, the guardian ad litem endorsed 

father's proposal to relocate. He considered the relocation of 

one of the parents inevitable and approved father's plan for 

relocation which, unlike the one presented at the initial 

hearing, was concrete. The guardian ad litem considered the 

relocation to be in the child's best interest because it would 

allow her to spend more time with her mother and would reduce the 

total number of miles driven per month. 

 Following the November hearing, the court again denied 

father's request to relocate, finding that father had failed to 

prove a change in the circumstances material to the issue of the 

child's removal from the state. It reaffirmed the findings it 

made at the September hearing and, reiterating its reason for 

denying father's motion to remove the child at the earlier 

hearing, stated: "Although I gave father custody . . . I also 

ruled that it was important that both parents participated fully 
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in [the child's] life and as a result of that I gave liberal 

visitation to [mother] and I refused [father] permission to move 

[the child] to North Carolina." 

 The court likewise denied the guardian ad litem's motion for 

reconsideration in an opinion letter dated November 22, 1995. In 

that letter, the court stated, "I remain convinced that if [the 

child] is removed to North Carolina, the likelihood is high that 

[father] will not foster a good relationship between [the child] 

and her mother. He does not do it here, and there is no reason 

to believe that he will do it 350 miles away. The converse is 

not true -- if [the child] stays here with her mother, [mother] 

is much more likely to foster a good relationship between [the 

child] and her father." The court also noted that it would award 

custody to mother if father chose to relocate. 

 II. 

 "A court may forbid a custodial parent from removing a child 

from the state without the court's permission, or it may permit 

the child to be removed from the state." Scinaldi v. Scinaldi, 

 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986) (citing 

Carpenter v. Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 848 

(1979); Gray v. Gray, 228 Va. 696, 698-99, 324 S.E.2d 677, 678 

(1985)). See also Code § 20-107.2 (granting court power to make 

decree "concerning the custody or visitation and support of the 

minor children of the parties"); Simmons v. Simmons, 1 Va. App. 

358, 362, 339 S.E.2d 198, 200 (1986). It is well settled that 
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the child's best interest is the criterion against which such a 

decision must be measured. E.g., Scinaldi, 2 Va. App. at 573, 

347 S.E.2d at 150. Such a decision is a matter of discretion to 

be exercised by the court, and, unless plainly wrong or without 

evidence to support it, the court's decree must be affirmed. 

E.g., Carpenter, 220 Va. at 302, 257 S.E.2d at 848. Finding no 

abuse of discretion in this case, we affirm the trial court's 

decision. 

 A. 

 At the initial custody hearing, the trial court clearly 

addressed the reasons for its finding that the child's best 

interests would be met by denying father's request to remove her 

to North Carolina. While the court found neither parent to be 

unfit, weaknesses in each party's ability to parent raised 

serious concerns on the part of both the guardian ad litem and 

the court. The court was manifestly concerned about father's 

"intense need to prove mother unfit" and about his efforts to 

limit mother's access to the child. In underscoring the 

seriousness of its concern, the court noted that evidence of 

father's motivation had made the question of custody a close one, 

nearly tipping the balance in mother's favor. 

 While the court awarded custody to father, it considered the 

evidence of father's efforts to minimize mother's access to the 

child in denying father's request to remove the child from the 

state. In denying the motion, the court specifically noted 
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father's efforts to limit mother's access to the child and 

emphasized the need to assure mother's regular, active 

involvement with the child. 

 The evidence supports the trial court's conclusion at the 

September hearings that the beneficial relationship between the 

child and her mother would not be maintained and would be placed 

at risk were father allowed to remove the child to North 

Carolina. In light of this evidence, we find no abuse of 

discretion in the trial court's initial decision to deny father's 

request to remove the child. See Scinaldi, 2 Va. App. at 575, 

347 S.E.2d at 151 ("[T]he added difficulty in maintaining a 

beneficial relationship between a child and a non-custodial 

parent should not be the sole basis for restricting a custodial 

parent's residence except where the benefits of the relationship 

cannot be substantially maintained if the child is moved away 

from the non-custodial parent"). 

 B. 

 Within weeks of the trial court's initial determination, 

father filed a notice of intention to remove the child to North 

Carolina. "Code § 20-108 permits the court to revise and alter a 

prior decree concerning the custody of children and to make a new 

decree concerning the same as the circumstances of the parents 

and the benefit of the children may require." Simmons, 1 Va. 

App. at 362, 339 S.E.2d at 200. Father did not seek modification 

of the court's custody determination; rather, he requested the 
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court to modify that part of its decree which denied his request 

to remove the child from the state. This Court has not addressed 

the standard that must be met before a court's decree regarding 

removal may be modified. 

 However, we find such circumstances analogous to those in 

which a litigant seeks to modify any other decree concerning 

custody or support. In such cases, before evaluating whether to 

modify a decree, the court must initially find a "material change 

in circumstance." See Turner v. Turner, 3 Va. App. 31, 35, 348 

S.E.2d 21, 23 (1986); Hughes v. Gentry, 18 Va. App. 318, 321-22, 

443 S.E.2d 448, 450-51 (1994); Hiner v. Hadeed, 15 Va. App. 575, 

579, 425 S.E.2d 811, 814 (1993). "In the absence of a material 

change in circumstance, reconsideration . . . would be barred by 

principles of res judicata." Hiner, 15 Va. App. at 580, 425 

S.E.2d at 814. 

 In cases involving the modification of a custody decree, 

once the threshold finding is made, the court must evaluate 

whether a change in custody would be in the best interests of the 

child. Hughes, 18 Va. App. at 321-22, 443 S.E.2d at 450-51. As 

stated above, the best interest of the child is the determinative 

factor in deciding whether to allow a custodial parent to remove 

the child from the state. E.g., Simmons, 1 Va. App. at 362-63, 

339 S.E.2d at 200. Accordingly, we find the best interest of the 

child is the criterion upon which a decision denying the removal 

of a child may be modified, once the threshold finding of change 
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in circumstances is made. Thus, to modify a decree denying a 

custodial parent permission to remove the child from the state, 

the court must find (1) a material change of circumstance since 

the initial decree; and (2) that relocation would be in the 

child's best interests. In accordance with our prior decisions, 

the moving party bears the burden of proof. See, e.g., Hughes, 

18 Va. App. at 322, 443 S.E.2d at 451. 

 At the November hearing on the motion of the guardian ad

litem, father sought to prove a change of circumstance that would 

merit his relocation with the child. The evidence showed that, 

since the initial hearing, father had developed a more concrete 

plan for his relocation to Charlotte. No other aspect of 

father's situation had changed. The court ruled that the 

increased certainty in father's relocation plan was not a change 

in circumstance material to its prior determination of the 

child's best interests. The ruling is not plainly wrong or 

without evidence to support it. 

 While father had developed a more concrete plan to relocate, 

the record does not support his contention that this issue was 

determinative in the trial court's initial refusal to permit him 

to remove the child to North Carolina. The evidence shows that 

the court's determination of the best interest of the child was 

premised on credible evidence concerning the need to stabilize 

the child and to stabilize, foster and preserve the relationship 

between mother and child. The court specifically found that, in 
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light of father's behavior, these goals would not be achieved if 

father were permitted to remove the child to North Carolina. 

Implicitly, the court concluded that the best interest of the 

child would be served by denying father's request. 

 A change in circumstance material to the best interests of 

the child in the case at bar would have borne some relation to 

the reasons for the trial court's initial decision denying the 

removal. That decision was premised on the notion that mother, 

although struggling, was not unfit and should actively 

participate in the child's upbringing. The court refused to 

allow father to remove the child because it was concerned that 

father would weaken the mother-child bond. There is no evidence 

in the record that the circumstances concerning father's 

willingness to foster and maintain the mother-child relationship 

had changed since the court's initial determination only two 

months earlier. Moreover, there is no evidence that mother had 

become unfit since the first hearing or that having mother 

participate in the child's life was no longer in the child's best 

interest. Thus, the change in father's circumstance was not 

material to the court's determination of the child's best 

interest. 

 Accordingly, we find the trial court did not abuse its 

discretion and we affirm the decree. 

Affirmed.