COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Seni or Judge Bumgardner

ANNE ELIZABETH SIRNEY MEMORANDUM OPINION * v. Record No. 0754-07-4 PER CURIAM DECEMBER 27, 2007 RICHARD PAUL SIRNEY

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Randy I. Bellows, Judge (Maria T. Browne; Maria Celeste Moran; Davis, Wright & Tremaine, LLP, on briefs), for appellant. (Richard L. Downey, on brief), for appellee.
Anne Elizabeth Sirney, mother , appeals a decision of the tr ial court awarding sole legal custody of the parties’ four children to Richard Paul Sirney, father. On appeal, mother argues the trial court erred by: (1) awarding sole legal cust ody to father where no ev idence indica ted mother was unable or unwilling to participat e in decision-making regarding the children ; (2) awarding sole legal custody to father where father was responsi ble for the breakdown in communications between the parties; (3) considering fact ors beyond mother’s control in its decision; and (4) ordering a restriction on overnight visitation . Mother also contends that th e trial court’s overnight visitation restriction violates her equal protection and due process rights. Upon re viewing the record and briefs of the parties, we conclude that this app eal is without me rit. Accordingl y, we summarily affirm the decision of the trial court. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Background The parties were married in 1989 and divorc ed in 2006. The parties had four children during the marriage. In August 2003, mother left th e marriage and took th e children to Oregon where they lived until father brought the children back to Virginia in Oct ober 2003. Pursuant to an order entered on December 3, 2004 , the parties shared jo int legal custody of th e children, with father having primary physical custod y and mother having visitation ri ghts. Since 2003, mother has resided in Oregon, where she now resides with her female life partner. In July 2006, father filed a petition to modify custo dy and visitation, seek ing sole custody of the children. The petition also sought to restrict the presen ce of mother’s life partner when the children are visiting moth er in Oregon. Mother filed a cross-petition seeki ng joint legal custody and primary physical cust ody of the children. The trial court held a four-day hearing on th e child custody matter. In addition to other evidence, the court heard in camera testimony from three of the fo ur children concerning their preferences. The children expr essed a desire to have more co ntact with mother, but are more comfortable living with father. The trial court found there had been three ma terial changes in circ umstances warranting a change in the custody order. First, there had been a complete breakdow n in communication between the parents which had led to an inability fo r them to co-par ent the children. In addition, mother’s relationship with the ch ildren had deteriorated signifi cantly because she had not had visitation with the children in Oregon sinc e the summer of 2005, and she had had limited communications with the children since October 2003. Last, the trial court indicate d that mother’s cohabitation with a person to whom she is not married was a change in circumstances. At the conclusion of the hearing, the trial court thoroughly addressed the factors of Code § 20-124.3 concerning the best interests of the chil dren, stating that it cons idered each factor in its- 3 - decision. The trial court found th at the limited c ontact mother has had with the children over the past several years has had a detrimental impact on th e children. Mother has not been involved in the daily activities of the ch ildren largely because she chooses to reside in Oregon. During one seven-week period in 2006 and for several other inte rvals, mother had no contact with her children. Father is “very bonded” with th e children, and he has a “very healthy” relationship with the children. Father is “deeply involved” in every as pect of the children’s li ves and has established a well-functioning household and a stable, consistent environment for the children. The trial court found th at father’s hostility toward moth er, often expresse d in emails to mother, had undermined and interfered with mothe r’s ability to have cont act with the children, causing her to fear that she may have inadvertent contact with fa ther. However, th e trial court also found that mother had demonstrated a lack of willingness to maintain a close an d continuing relationship with her children by ch oosing to live in Oregon and no t exercising her visitation rights with her children over the past two years. The trial court stated that mother failed to put her children first and this fact was “of enormous significance” to th e trial court in its decision. The trial court emphasized that this custody cas e was “not at all” about the fact that mother is now in a lesbian relationship. The trial court declared that mother’s curr ent homosexual relationship “has not been the focus of my determin ation.” Rather, the tria l court stated that the significance of mother’s relationship to the tria l court’s decision in th e case was based on the reaction of the children to mother’s relationship. The two oldest chil dren expressed to the trial court “varying degrees of discomfort” an d awkwardness with mother’s rela tionship with her life partner. One child stated she would rath er see her mother “alone.” The trial court awarded father sole legal custod y of the children because the parents’ actions during the past two years had indicated that they we re currently unable to co-parent the children. The court ordered that father must attempt in good fait h to consult with moth er as to all major- 4 - decisions in the lives of the children. The trial court further awarded primary physical custody to father and visitation rights to mother because the children are firmly rooted in Virginia. The trial court ordered that there shall be “no overnight stay s by a person to whom [mother] is not married with whom she is involved in a romantic, sexual relationship while the ch ildren are visiting” mother. The court elabor ated that this condition applied to both male and female persons with whom mother is involved in a romantic, sexual re lationship. In addition, the court ordered that mother could introduce the children to her friends or involve her frie nds in family activities with the children, but she had to “keep para mount the children’s comfort level.” Analysis I. Custody We view the eviden ce in the light most favo rable to father as the party prevailing below. Wright v. Wright , 38 Va. App. 394, 398, 564 S.E.2d 702, 704 (2002). We will not substitute our judgment for that of the trial court unless we find that the judgment was pl ainly wrong or without evidence to support it. Simmons v. Simmons , 1 Va. App. 358, 361, 339 S.E.2d 198, 199 (1986). “In issues of child custody, ‘the court’s param ount concern is always th e best interests of the child.’” Vissicchio v. Vissicchio , 27 Va. App. 240, 246, 498 S. E.2d 425, 428 (1998) (quoting Farley v. Farley , 9 Va. App. 326, 327-28, 38 7 S.E.2d 794, 795 (1 990)). “Code § 20-124.3 specifies the factors a court ‘shall consider’ in determining the ‘best interests of a child for . . . custody or visitation.’” Brown v. Brown , 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (199 9). “‘[T]rial courts are vested with broad discretion in making the deci sions necessary to guard and to foster a child’s best interests.’” Farley , 9 Va. App. at 328, 387 S.E.2d at 795; see Yopp v. Hodges , 43 Va. App. 427, 439, 598 S.E. 2d 760, 766 (2004) (“We af ford great deference to the trial court’s determination of what is in the best interests of the child.”). “‘We will not disturb the trial court’s decision where it is based on an ore tenus hearing, unless it is “plainly wrong or without evidence in the record to- 5 - support it.”’” Moreno v. Moreno , 24 Va. App. 190, 19 5, 480 S.E.2d 792, 795 (1997) (citations omitted). Mother argues the trial court erred by awardi ng sole legal custody to father because no evidence demonstrated that moth er “could not or would not partic ipate in the decision-making” concerning the children. This argument is without me rit and mischaracteriz es the trial court’s ruling. The trial court did not find that mother could not or would not participate in the decision-making concerning the child ren. Rather, the tria l court found that the evidence showed the parents were currently unable to co-parent the children because of the complete communication breakdown between the parent s. In addition, after aw arding father sole legal custody, the trial court ordered that father shall attempt to consult with mother on all ma jor decisions in the lives of the children. Mother contends the trial cour t abused its discreti on in making the custody award where the evidence showed that father was responsible for the commun ication breakdow n between the parents. While the trial court re cognized that father’s hostility toward mother sometimes interfered with mother’s ability to main tain contact with the child ren, the trial court also specifically stated that it was a “two-way street” and that mother had also expressed anger and hosti lity toward father. A review of the email correspondence between the pare nts supports the conclusion that both parties were responsible for the lack of effective communications. Theref ore, this argument is without merit. Mother argues the trial court erred by basing it s decision on factors that were outside of her control or were caused by father, such as her failure to exercise visitation rights from the summer of 2005 until September 2006. Mother contends father was predominan tly responsible for her failure to see the children in the summer of 2006 and the trial court did not factor father’s conduct into its decision.- 6 - In its discussion of Code § 20-124.3(6), the tr ial court specifically re ferenced the fact that father denied mother summer visita tion in 2006. The trial court al so referenced a five-week period in 2005 where father inte rfered with mother’s abi lity to telephone the childre n. Therefore, the trial court considered father’s conduct as it affected mother’s relatio nship with the children. On the other hand, evidence was also pr esented from which the tr ial court could conclude that, in other instances, mother willingly chos e to limit her contact and co mmunication with the children. The record shows the trial cour t carefully weighed a ll the factors set out in Code § 20-124.3 in making the custody de cision. The trial court is not required “‘to quantify or elaborate exactly what weight or considerat ion it has given to each of the statutory factors.’” Kane v. Szymczak , 41 Va. App. 365, 373, 585 S.E.2d 349, 353 (2003) (quoting Sullivan v. Knick , 38 Va. App. 773, 783, 568 S.E.2d 430, 435 (2002)). As long as evidence in the record supports the trial court’s ruling and the trial court has not abused its discretion, its rulin g must be affirmed on appeal. See Alphin v. Alphin , 15 Va. App. 395, 405, 42 4 S.E.2d 572, 578 (1992). The trial court’s decision was based on a pr oper consideration of the evidence and the factors found in Code § 20-12 4.3, and the evidence sup ported the conclusion reached. II. Visitation Mother argues the trial court erred by ordering the limitation on over night visitors at her residence when the children are visiting mother. A trial court’s decision s on visitation matters are ones within judicial discretion, where the child’s welfare is the ove rriding consideration. Eichelberger v. Eichelberger , 2 Va. App. 409, 412, 345 S.E.2d 10, 11 (1986). In imposing visitation restrictio ns, a trial court may co nsider “what effect a nonmarital relationship by a pa rent has on the child.” Brown v. Brown , 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977); see also Carrico v. Blevins , 12 Va. App. 47, 50, 402 S.E.2d 235, 237 (1991)- 7 - (upholding the restriction that the child could not be kept overnight where the mother and her lover lived together). Two of the children expressed a level of di scomfort and awkwardnes s about being in the presence of mother’s life partner. The trial c ourt explicitly ruled that there was no complete prohibition on any contact between the children and mother’s life partner and it ordered that mother must keep “paramount” the comfort level of the children when in the presence of her life partner. However, based on concerns expressed by two of the children, the trial court prohibited overnight visits by any person to whom mother is not marri ed and with whom she is involved in a sexual relationship. “[T]he protection of children fr om harm, whether moral, emotional, mental, or physical, is a valid and comp elling state interest.” Knox v. Lynchburg Div. of Soc. Servs. , 223 Va. 213, 223, 288 S.E.2d 399, 404 (1982). Furthermore, nothing in the tr ial court’s ruling suggests that the court based its decision on its own moral views. Rather, eviden ce in the record supports the tria l court’s decision. In addition, whether to accept the testimony of the expert witness was within the purview of the trial court. See Street v. Street , 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) ( en banc ). In view of the circumstances of this case, which did not mandat e that the trial court completely bar mother’s companion from the children’s presen ce, we hold that the trial court did not abuse its discretion in imposing visitation restrictions. Mother argues that the overni ght visitation restriction infringes on her equal protection rights because it imposes a restriction based upon her status as a homosexual. She also contends the overnight visitation restriction violates her due pr ocess right to make decisions about her private conduct, disrupts her life , and forces her to choo se between her children and her life partner. The central mandate of the equal protecti on guarantee is that “t he sovereign may not draw distinctions between indi viduals based solely on differen ces that are irrelevant to a- 8 - legitimate governmental objective.” Lehr v. Robertson , 463 U.S. 248, 265 (1983). As a general rule, when a party claims a due process violatio n, courts “require a showing of identifiable prejudice” to that party. Estes v. Texas , 381 U.S. 532, 542 (1965). To establish a claim for violation of due process, mother must show that the procedure she complains of deprived her of “a liberty or property interest.” Jackson v. W. , 14 Va. App. 391, 406, 419 S.E.2d 385, 393 (1992). The trial court’s overnight vi sitation restriction did not impo se a limitation based upon mother’s homosexual relationship and it did not restrict or deprive mother of a liberty interest. Rather, the trial court’s visitation restriction was gender neutral, applying to both male and female overnight guests, thereby applying equally to bo th heterosexual and ho mosexual relationships. Furthermore, the trial court specifically stated that the focus of its analys is of the case was not mother’s homosexual relationship, but the conduct and relationship of each parent with the children and the best interests of the chil dren. Indeed, the trial court went to great lengths to discuss the factors of Code § 20-124.3 in its analysis. In addition, the trial court emphas ized that mother’s homosexual relationship was significa nt to the trial court only in co nsideration of how the children have reacted to the relationsh ip. Consequently, we reject mother’s cl aims that she was discriminated against on an impermissible basis u nder the Equal Protection Cl ause of the Fourteenth Amendment or that she was deprived of a liberty interest by the overnight visitation restriction. Mother’s argument that the trial cour t would have had no grounds to impose the overnight visitation restriction if she was married to her current life partner in a marriage that Virginia would recognize as legal poses a hypothe tical situation. “We need not address this- 9 - argument since it posits a who lly hypothetical situation.” Pryor v. Commonwealth , 48 Va. App. 1, 7, 628 S.E.2d 47, 50 (2006). Accordingly, we affirm the trial court’s judgment. Affirmed.