COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and McClanahan 

Argued at Salem, Virginia 

DAPHNE BURKE RAMSEY, F/K/A 

 DAPHNE M. CLEMENTS 

 MEMORANDUM OPINION* BY 

v. Record No. 2988-02-3 JUDGE ELIZABETH A. McCLANAHAN 

 JULY 22, 2003 

ROBERT E. CLEMENTS 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 John C. Wirth (Victor M. Santos; Victor V. 

 Ludwig; Nelson, McPherson, Summers & 

 Santos, L.C., on brief), for appellant. 

 No brief or argument for appellee. 

 Daphne Burke Ramsey (mother) appeals the trial court's 

decision denying her motion for a change in custody of her 

daughter. Custody had been granted to the child's father, 

Robert E. Clements (father), through a separation agreement 

incorporated into the parties' divorce decree. Mother raises 

two questions on appeal: (1) whether the trial court erred in 

refusing to apply the law applicable to custody disputes between 

biological parents and a third party after finding that the 

child was being raised "primarily" by her grandparents; and 

(2) whether the trial court erred in its application of the law 

 *

 Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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where one parent delegated custody of the child to a third 

party. For the reasons that follow, we affirm the judgment of 

the trial court. 

I. Background 

 The parties were married in 1994, and had one child 

together in 1995. After separating and filing for divorce in 

April 1999, on May 26, 1999, in lieu of a custody hearing, the 

parents executed a separation agreement in which they agreed 

that father would have custody of the child. On July 15, 1999, 

mother filed a motion to set aside the agreement, which the 

trial court denied. The couple's divorce decree was entered in 

February 2000, and it ordered custody to the father. 

 On August 8, 2002, mother filed a motion seeking legal and 

primary physical custody of the child and child support on the 

grounds that there had been a material change in circumstances 

and that it would be in the best interests of the child. On 

September 4, 2002, the trial court held a hearing on the motion, 

where mother appeared in person and by counsel, and father 

appeared pro se. The record contains a written statement of the 

facts. 

 According to the statement of facts, father testified that 

the child resides with him but spends, on average, one-half of 

the time with her paternal grandparents. He also testified that 

the couple lived, with the grandparents for the first year of 

the child's life and that the grandmother has provided daycare 
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for the child since birth. He stated that the grandmother had 

been retrieving the child from the school bus and that the child 

has a close relationship with her grandparents. The 

grandparents have been handling visitation between the child and 

her mother because father and mother have confrontations when 

they have contact. Father's current wife corroborated father's 

testimony that the child spends about one-half of her time with 

her grandparents. Father resides approximately five minutes 

away from grandparents. 

 Grandfather testified at hearing that the child spent every 

night with father until January 2002, when an incident occurred 

on the school bus that caused the child not to ride the school 

bus thereafter. Since that problem occurred, the child has been 

spending most school nights with her grandparents. 

 A private investigator employed by mother testified that on 

twenty occasions between February and September 2002 he 

conducted surveillance on the grandparents' dwelling and 

observed that in each instance the child spent the night with 

her grandparents. He also stated that his surveillance occurred 

during the school year, and did not include summer vacation. 

 Mother testified that she has remarried and has a child 

with her current husband. She introduced a school record that 

requires the child's custodian to initial that the child has 

completed each evening's home reading assignments. Father's 
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initials do not appear on the assignment record after January 

22, 2002. 

 Every witness testified that the child is doing well 

overall. Further, she is performing well in school, is in good 

physical health and has no apparent emotional problems. 

 On October 15, 2002, the trial court entered an order 

denying mother's motion for a change in custody. The order 

stated, 

the Court, having considered the evidence 

and the statutory provisions . . . finds, by 

a preponderance of the evidence, that 

[child] is primarily being raised by her 

grandparents; that she is doing well with 

her grandparents and that the best interest 

of the child would be served by 

continuing the present arrangement . . . . 

The order also expanded mother's visitation rights beyond those 

set forth in the parties' separation agreement. This appeal on 

custody followed. 

II. Analysis 

 A trial court may "revise and alter such decree concerning 

the care, custody and maintenance of the children and make a new 

decree concerning the same, as the circumstances of the parents 

and the benefit of the child may require." Code § 20-108; 

Wilson v. Wilson, 18 Va. App. 193, 195, 442 S.E.2d 694, 695-96 

(1994). The decision to modify a child custody order is 

committed to the sound discretion of the trial court. Id. In 

considering whether a change in custody is warranted, the trial 
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court determines: (1) whether there has been a material change 

of circumstances since the most recent custody award; and 

(2) whether a change in custody would be in the best interests 

of the child. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 

921 (1983); see also Visikides v. Derr, 3 Va. App. 69, 70, 348 

S.E.2d 40, 41 (1986). The parent seeking to obtain a transfer 

of custody bears the burden to show a change in circumstances, 

Hughes v. Gentry, 18 Va. App. 318, 322, 443 S.E.2d 448, 451 

(1994), and that the change in custody is appropriate for the 

welfare of the child. Eichelberger v. Eichelberger, 2 Va. App. 

409, 412, 345 S.E.2d 10, 11 (1986) (citations omitted). 

 A trial court's decision, when based upon an ore tenus

hearing, is entitled to great weight and will not be disturbed 

unless plainly wrong or without evidence to support it. Venable 

v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986). 

"'A trial court's determination of matters within its discretion 

is reversible on appeal only for abuse of that discretion . . . 

and a trial court's decision will not be set aside unless 

plainly wrong or without evidence to support it.'" Goldhamer v. 

Cohen, 31 Va. App. 728, 734-35, 525 S.E.2d 599, 602 (2000) 

(citations omitted). 

 In matters concerning custody, the welfare and best 

interests of the child are the "primary, paramount and 

controlling considerations." Kogon v. Ulerick, 12 Va. App. 595, 

596, 405 S.E.2d 441, 442 (1991). The statute reflects the 
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importance placed upon securing the best interests of the child, 

whose interests, in the final analysis, must be protected by the 

courts. Code § 20-124.2(B) ("In determining custody, the court 

shall give primary consideration to the best interests of the 

child."); see also Keel, 225 Va. at 612, 303 S.E.2d at 921. 

 Mother argues that once the trial court found that the 

grandparents were raising the child, it should have applied the 

law applicable to custody disputes between biological parents 

and a third party. We disagree with this assertion. Legal and 

physical custody of the child remains with the father and has 

not changed since the parties signed their separation agreement. 

The grandparents are not a party to this matter. Furthermore, 

the grandparents had never been awarded legal custody or 

visitation rights, nor were they awarded custody or visitation 

rights in the trial court proceeding at issue here. Therefore, 

third party custody and visitation law does not apply to this 

case. See Code § 20-124.2(B); Williams v. Williams, 256 Va. 19, 

501 S.E.2d 417 (1998). The trial court correctly did not apply 

it. 

 The trial court considered changes in circumstances. The 

child is being primarily raised by her grandparents. The 

testimony indicates this is done for the child's convenience 

during the school year. Mother has remarried and has a child by 

her current husband. In spite of the changes, the trial court 

found that the best interests of the child would be served by 
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leaving the child in the custody of her father. We find no 

abuse of discretion by the trial judge. Because the evidence 

supports the trial court's decision, we find no error and 

affirm. 

 Affirmed.