COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Humphreys and Kelsey Argued at Richmond, Virginia

PHILIP SURLES v. Record No. 1782-05-2
KRISTAN MAYER OPINION BY JUDGE ROBERT J. HUMPHREYS PHILIP SURLES APRIL 25, 2006 v. Record No. 2064-05-2
KRISTAN MAYER AND MARTY CULLEN, JR.

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY George Mason, III, Judge Kristie L. Kane (Simmons, Brow n & Kane, P.L.C., on briefs), for appellant. Barry J. Waldman (Waldman & Associates, LLC, on briefs), for appellee Kristan Mayer. No brief or argument fo r appellee Marty Cullen, Jr.
Appellant Philip Surles (“Surles”) appeals the trial court’s denial of his petition for custody of his biological daughter, Ka yla. In a connected case, Surl es also appeals the denial of his motion for visitation with Kayla’s half-siblin g, James, whose biological father is appellee Marty Cullen, Jr. (“Cullen”), and to whom Surles has no biological ties. We consolidated these separate appeals for purposes of oral argumen t, and, because the two cases involve similar factual and legal issues, we have also consolid ated them for purposes of this decision. On appeal, Surles argues that the trial court erred in determining that he lacked standing to pursue visitation with James because he is not a “person with a legitimate interest” within the- 2 - meaning of Code § 20-124.1, even though he resided intermittently with James, Kayla, and their biological mother, appellee Kristan Mayer (“Mayer”). Surles further contends that the trial court erred in determining that, even if he is a “pers on with a legitimate interest ,” he failed to prove that awarding visitation w ould be in the best interests of the child. Surles also argues that the trial court erroneously: (1) heldthat granting him custody of Ka yla would not be in the best interests of the child, (2) permitted Mayer to re locate to Florida with the children, and (3) admitted evidence that, while living with Mayer, Su rles had been involved in relationships with other women. For the reasons that follow, we affirm the judgments below. We also deny Mayer’s request for an award of the attorneys’ fees incurred on appeal. 1
I. BACKGROUND On appeal, we view the evidence in the lig ht most favorable to Mayer, the party prevailing below. Yopp v. Hodges , 43 Va. App. 427, 430, 598 S.E.2d 760, 762 (2004). So viewed, the evidence in this case establishes the following. In November of 1998, Mayer and Surles be gan dating. At the time, Mayer had a ten-month-old son, James. During the early months of his relationship with Mayer, Surles saw James “maybe twice, three times a month.” Du ring the summer of 1999, however, Mayer started to work from her home, and Surles and James be gan to have contact “almost [] everyday.” At that point, James had virtually no contact with Cu llen, his biological father. As a result, Surles served as James’ primary father figure. 2 In February of 2000, Mayer and Surles m oved in together. They separated soon afterwards, when Mayer discovered that Surles had “cheated on her.” In the middle of July,

1 The guardians ad litem failed to file an appellate brief, appear during oral argument, or otherwise enter an appear ance before this Court.

2 The record reflects that Cullen began inform al visitation with James when the child was approximately two years old. Cullen also pays child support to Mayer.- 3 - however, the parties reunited, and, one month later, Mayer discovered that she was pregnant with Surles’ child. In May of 2001, Mayer gave birth to Kayla. The parties never married, however, and, in December of 2002, they ended the relati onship. Surles has since become engaged to another woman. While Mayer and Surles were living together , Surles was, on at least two separate occasions, physically abusive toward Mayer. Specifically, Surles once “shoved Ms. Mayer in the bedroom over a laundry basket and onto the bed.” On another occasion, Surles, who “had been drinking,” “smack[ed]” Mayer while at the home of a family friend. Following the parties’ separation, Mayer filed a petition for custody of Kayla. On May 5, 2003, the Spotsylvania County Juvenile and Dome stic Relations Distri ct Court entered a “Custody/Visitation Order” granti ng the parties joint legal custody of Kayla. According to the court order, Mayer obtained primar y physical custody of Kayla, and Surles received the right to “reasonable and seasonable visitatio n” with the child. Following entry of this custody order, James occasionally accompanied his half-sister to Surles’ home for visitation. James’ last visit with Surles occurred in November of 2003. In late 2003, Mayer’s father moved to Flor ida. Accordingly, Mayer—who worked as a loan officer for a mortgage comp any—decided to accept a transfer o ffer to Florida. In January of 2004, Mayer notified Surles by lett er that she intended to reloca te to Florida in March of 2004. After receiving the le tter, Surles filed a motion to amend the May 2003 custody order on the grounds that Mayer “is moving to Florida.” Su rles requested that he “be granted physical custody of Kayla or that [Mayer] be prohibited fr om moving from Virginia,” reasoning that, if Mayer were permitted to relocate, Kayla “will be e ffectively alienated from her Father.” Surles also filed a petition seeking visitation with James, alleging that James “is a child whose visitation requires determination as provided by [Code § 16.1-241(A)(3)].”- 4 - After conducting an expedited hearing regard ing Surles’ petition to amend the May 2003 custody order, the juvenile and domestic relations di strict court denied Surles’ request. By final order dated April 8, 2004, the court also held that Mayer was permitted to move to Florida with Kayla, further providing that Su rles was to receive visitation with Kayla “for six consecutive days per month beginning April 2004.” Immedi ately following issuance of the order, Mayer moved to Florida. The rest of Mayer’s fa mily—including her moth er and stepfather—soon followed. After Mayer moved to Florida, the juvenile and domestic relati ons district court scheduled a hearing to resolve th e merits of Surles’ petition for visitation with James. Cullen— James’ biological father—did not appear atthe hearing before the district court. 3 By order dated September 10, 2004, the district court denied Surles’ request for vi sitation with James. Surles appealed this decision to the ci rcuit court, and he also appeal ed the April 2004 order allowing Mayer to relocate to Florida and denying Surles’ petition to amend the custody arrangement regarding Kayla. While the appeals to the circuit court were pending, Mayer and Surles had difficulties scheduling his court-ordered vis itation with Kayla. These probl ems apparently stemmed from

3 However, on March 5, 2004, Cullen mailed a le tter to the court indicating that he was on full bed rest recovering from major surgery and would, therefore, be unable to appear at the hearing. Cullen further informed the court that he opposed Surles’ motion for visitation, that he was “in full agreement” with Mayer’s “decision to relocate to Florida,” and that the two had “mutually agreed on visitation [w ith James] after [Mayer’s] exp ected move in March of 2004.” This letter was directed solely to the attention of the “court of Spotsylvania,” and it was marked “Received and Filed” in the circuit court on September 21, 2004. Because the parties presumably were unaware of the letter’s existe nce, it was not introduced as an exhibit in the proceedings before the circuit court, and it was not included in the Joint Appendix filed on appeal. Also, the record fails to indicate whethe r the trial court considered this letter when reaching its decision. Regardless, because, as discussed in Part II(A)(2), infra , the letter is not necessary to the resoluti on of this appeal, we need not d ecide whether it would have been appropriate for the trial court to consider its cont ents when deciding the me rits of this case, nor do we decide whether it would be appropriate for this Court to c onsider the letter on appeal.- 5 - the parties’ different work schedules—Mayer preferred to have the visitation begin on a weekend, so she would not have to miss work, whereas Surles—a firefighter who works four ten-hour days a week—preferred to have visitation begin on one of his days off, which are often weekdays. However, although Surles was only gi ven six consecutive days of visitation with Kayla under the April 2004 visitation order, Ma yer allowed him “seven or more” days of visitation on some occasions. Also, because Mayer missed several office mee tings while trying to convey Kayla to and from Virginia, she lost the job that enabled her to work at home. Instead, in September of 2004, she started a new office job as a loan processor with another mo rtgage company. As a result, Mayer enrolled Kayla in a “Head Start” progra m that lasts from approximately 8:00 a.m. until 5:15 p.m. Kayla also started gymnastics lessons in Florida, and James became involved in a Cub Scouts program. Also, after moving to Florid a, Kayla stopped having problems with her allergies, which had troubled her since birth. T hus, Kayla’s allergy specialist recommended that she stop taking her prescr iption allergy medication. During the May 10 hearing before the circuit co urt, Surles testified that he had been a “father figure” to James and had “treated [James] just like he was my son.” Surles also said that he “took [James] under [his] wing” because James’ biological father “was only around . . . a handful of times” during “the firs t couple years.” Similarly, Surles’ father testified that Surles’ relationship with James was “just like a ny father would have with any son.” As to Kayla, Surles said that, when she come s to visit, “[s]he’s a whole lot more clinging to me” than she had been before the move to Florida. Similarly, Surles’ father— Kayla’s grandfather—testified that, generally, Kayla “seems to be a little bit nervous and very glad to be here.” Surles also said that, if he is awarde d custody of Kayla, he has made arrangements for her to receive child care while he is at work.- 6 - At the conclusion of Surles’ case-in-chief, Mayer moved to strike the petition for visitation with James, reasoning th at there was no evidence that James would suffer actual harm in the absence of visitation. In response, Surles argued that “actual harm has been shown at this point” because the child has been “emotionally harmed by the fact that he has limited contact with Mr. Surles . . . .” Mayer also made a s econd motion to strike, argu ing that Surles lacked standing to seek visitation with James because he did not fall within the “statutory standard of a party who has a legitimate interest .” In response, Surles argued th at he fell within the statutory definition of “blood relatives and family members” b ecause he is the father of James’ half-sister. The court took both motions to strike under advisement. Mayer, testifying on her own behalf, stated that her entire family now resides in Florida. Specifically, in addition to her father and stepmoth er, Mayer’s brother, half-brother, stepbrother, uncle and seven-year-old cousin, grandfather, and step -grandparents live in Florida. According to Mayer, the children have beco me close to each of these members of her family. For example, Mayer stated that, in the year and a half since th e family moved to Florida, the children visited with her brother (their uncle) between twelve an d fifteen times, each visit lasting for an entire weekend. Additionally, Mayer testified that Surles was involved with other women on three separate occasions during the cour se of their two-and-a-half-yearrelationship. Surles objected on the grounds of relevance, and Mayer respond ed that the evidence was relevant because “Surles is trying to paint himself as a man who is completely and utterly concerned about his family.” The court overruled the objection, noting its belief that “morals are always an issue.” According to Mayer, the first incident involving another woman—to which Surles had already admitted during his prio r cross-examination—occurred s oon after the par ties moved in together. The second incident occurred when Mayer was “approximately three and a half- 7 - months pregnant” with Kayla. Mayer testified that the third in cident occurred in December of 2002, presumably precipitating the partie s’ decision to end the relationship. Following the parties’ closing arguments, the trial court granted Mayer’s motion to strike Surles’ petition for visitation with James, reasoni ng that Surles “is not a party in interest” under Code § 20-124.1 because he does not “hav[e] a bi ological connection with [James].” Thus, by final order dated July 25, 2005, th e court found that Surles “is not a person with a legitimate interest pursuant to Virginia Code Section 20-124.1, . . . and fu rther finds that pursuant to Section 20-124.3, . . . the best in terests of the child are supporte d by the continued placement of said child with [Mayer] without or der of visitation to [Surles].” As to the petition for custody of Kayla, the ci rcuit court ruled that “it is appropriate to allow the relocation of the child to Florida” becau se “the benefit to Kayl a of the relocation to Florida outweighs the detriment [to] her relation ship [with Surles].” Thus, the court concluded that “the best interests of the child would be served by continued re sidence in Florida and physical custody to [Mayer].” This appeal follows.
II. ANALYSIS In this consolidated appeal, Surles argues that the trial court erred in denying his motion for visitation with James, contending: (1) that he is a “person with a legitimate interest” within the meaning of Code § 20-124.1, and (2) that, considering the factor s set forth in Code § 20-124.3, awarding visitation would be in the best interests of the child. In regard to Kayla, Surles contends that the trial court erred in denying his motion to amend the May 2003 custody order or, in the alternative, to de ny Mayer’s request to move to Florid a. Surles reasons: (1) that granting him custody of Kayla would be in the best interests of the ch ild; (2) that the harm to his relationship with Kayla caused by Mayer’s relocation to Florida outweighs the benefit of the- 8 - relocation to the child; and (3) that the trial court erred in considering evidence that Surles had been involved in relationships with other women. For the reasons that follow, we hold that, although Surles is a “person with a legitimate interest” within the meaning of Code § 20-124.1 and, thus, has standing to pursue visitation with James, he failed to establish that, in the abse nce of visitation, James would suffer actual harm. Accordingly, we affirm the denial of Surles’ peti tion for visitation with Ja mes. We further hold that the trial court did not err in denying Surl es’ petition to amend the May 2003 custody order and in permitting Mayer to relocate to Florida. Moreover, we hold that the trial court did not abuse its discretion in admitting evidence demonstrating Surles’ tendency to engage in simultaneous relationships with multiple women. Finally, we deny Mayer’s request for an award of the attorneys’ fees she incurred on appeal. A. The Petition for Visitation with James Under Virginia law, an individual who is notthe biological parent of a child may, under certain circumstances, petition for visitation with that child. Specifically, according to Code § 20-124.2, a trial court may, “upon a showing by clea r and convincing evidence that the best interest of the child would be served thereby[,] award . . . vi sitation to any [] person with a legitimate interest.” Code § 20-124.2(B). The phrase “person with a legitimate interest” is defined, in pertinent part, as follows:

“ Person with a legitimate interest” shall be broadly construed and includes, but is not limited to grandparents, stepparents, former stepparents, blood rela tives and family members provided any such party has intervened in the suit oris otherwise properly before the court. The term shall be broa dly construed to accommodate the best interest of the child. Code § 20-124.1. Initially, then, we must consider whether Surl es qualifies as a “person with a legitimate interest,” within the meaning of Code § 20-124.1 . This presents a pure issue of statutory- 9 - construction, which we review de novo on appeal. See Sink v. Commonwealth , 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998) (“[A]lthough the trial c ourt’s findings of historical fact are binding on appeal unless plainly wr ong, we review the trial court’ s statutory interpretations and legal conclusions de novo .”). 1. Whether Surles Is a “Pers on with a Legitimate Interest” When deciding whether Surles is a “person w ith a legitimate interest” within the meaning of Code § 20-124.1, we begin, as always, with the pl ain language of the stat ute, for “‘[w]here the legislature has used words of a plain and de finite import the courts cannot put upon them a construction which amounts to holding the le gislature did not mean what it has actually expressed.’” Barr v. Town & Country Properties , 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall , 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). “We must . . . assume that the legislature chose, with care, the words it us ed when it enacted the . . . statute, and we are bound by those words as we interpret the statute.” Id. As noted above, Code § 20-124.1 lists severa l types of individuals who qualify as a “person with a legitimate interest,” specifically, “grandparents, stepparents, former stepparents, blood relatives and family members.” Surles doe s not fall within the pl ain meaning of any of these terms. 4 Unquestionably, Surles is not a grandparent , stepparent, or former stepparent, nor

4 Surles maintained before the trial court, a nd in his opening brief in this Court, that he qualifies as both a “blood relative” and a “family member” within the meaning of the statute. However, during oral argument, Su rles conceded that he does not fall within the plain meaning of these terms.- 10 - is he a “blood relative” 5 or a “family member” 6 of James. Regardless, we hold that Surles—who acted as a surrogate father to James for almost four years—is a “person with a legitimate interest” within the meaning of Code § 20-124.1. As both parties correctly note, when a stat ute expressly lists th e individuals to be encompassed by its terms, the principle of expressio unius est exclusio alterius generally bars application of the statute to pers ons other than those sp ecifically enumerated in the statute. See Smith Mountain Lake Yacht Club v. Ramaker , 261 Va. 240, 246, 542 S.E.2d 392, 395 (2001); Commonwealth v. Brown , 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000) . It is this principle upon which Mayer principally relies in arguing that Surles has no standing to request visitation with James. However, in enacting Code § 20-124.1, the legi slature provided that the phrase “person with a legitimate interest” includes, “ but is not limited to ,” the designated indi viduals. Code § 20-124.1 (emphasis added). Moreover, the legislat ure expressly stated that the phrase “person with a legitimate interest” is to be “broadly c onstrued to accommodate th e best interest of the child.” Id. The list of individuals in th e statute, then, is clearly in tended to be illustrative, not exhaustive. Thus, the principle of expressio unius est exclusio alterius is, by its very nature, inapplicable. See Santa Ana v. Garden Grove , 160 Cal. Rptr. 907, 910 (Ct. App. 1979) (“Use of

5 A “blood relative” is one who shares a common ancestor with the child, see Black’s Law Dictionary 164 (7th ed. 1999) (defining “blood” as “[t]he relationship by descent from a common ancestor”), and, thus, is directly relate d to that child by a c onsanguineous relationship, see Doyle v. Commonwealth , 100 Va. 808, 811, 40 S.E. 925, 926 (1902) (defining “consanguinity” as “relat ion by blood”); see also Black’s , supra , at 299 (defining “consanguinity” as “[t]he relationship of persons of the same blood or origin”). Thus, a “blood relative” would be, for example, a grandparent, aunt, uncle, cousin, sib ling, nephew, or niece.

6 The generally accepted definition of a “family” is “[a] group of persons connected by blood, by affinity, or by law.” Black’s , supra , at 620. Thus, a “family me mber” is an individual who is related to th e child by “blood,” see note 5, supra , by “affinity,” which is “the relation of one spouse to the other spouse’s kindred,” Brooks v. Commonwealth , 41 Va. App. 454, 460, 585 S.E.2d 852, 855 (2003), or by “law.”- 11 - those words [but not limited to] manifests a legisl ative intent that the st atute not be given an

‘ expressio unius ’ construction.”). Turning now to the applicable canons of statutory construction, we note that, [u]nder the rule of ejusdem generis , when a particular class of persons or things is enumerated in a statute and general words follow, the general words are to be restricted in their meaning to a sense analogous to the less general, particular words. Likewise, according to the maxim noscitur a sociis . . . [,] when general and specific words are grouped, the general words are limited by the specific and will be construed to embrace only objects similar in nature to those things identified by the specific words. Wood by & Through Wood v. Henry County Pub. Schs. , 255 Va. 85, 94-95, 495 S.E.2d 255, 260-61 (1998) (internal quotations and citations omitted); see also Kappa Sigma Fraternity, Inc. v. Kappa Sigma Fraternity , 266 Va. 455, 470, 587 S.E.2d 701, 710 (2003). Thus, if a statute provides an illustrative list of persons or thi ngs to which its provisions should apply, an unenumerated person or thing must be “similar in na ture” to those expressly listed in order to fall within the scope of the statute. Wood , 255 Va. at 95, 495 S.E.2d at 261; see also Helvering v. Morgan’s, Inc. , 293 U.S. 121, 125 n.1 (1934) (“[T]he verb ‘i ncludes’ imports a general class, some of whose particular instances ar e those specified in the definition.”). To qualify as a “person with a legitimate inte rest,” then, a petitione r need not establish that he is a “grandparent[], st epparent[], former stepparent[], blood relative[] [or] family member[].” Rather, the petitioner need only show that he maintain s a relationship with the child similar in nature to those expr essly listed in Code § 20-124.1. See In re Henderson , 96 B.R. 820, 835 (Bankr. E.D. Tenn. 1989) (“[I]n cases in which the relationship at issue is not one of the relationships enumerated in [the statute], th e relevant inquiry is whether the relationship nonetheless falls within the genera l class . . . contemplated by the statute. One way to undertake this analysis . . . is to consider whether the relationship at issue is similar to or has characteristics- 12 - of any of the relationships [expr essly listed in the statute].”). 7 And, when determining whether the relationship between the petiti oner and the child qualifies the petitioner as a “person with a legitimate interest,” we must keep in mind that th is phrase is to be broa dly construed, so as to accommodate the best interests of the child. See Code § 20-124.1. Ultimately, whether a petitioner’s relationship with a child is sufficient to qualify that petitioner as a “person with a legitimate interest” is a fact-specific inquiry that must be re solved on a case-by-case basis. Here, as Surles argues, his relationship with Ja mes is the functional equivalent to that of a “former stepparent.” It is uncont roverted that Surles resided in the same household as James for almost three years, while maintaining a relations hip with James’ mother similar to that of husband and wife. During that time period, Surles se rved as James’ primary father figure, and he developed a close relationship with the child. Also during this time period, Surles and James’ mother conceived and gave birth to another child —James’ half-sibling. There can be little doubt that, under these circumstances, James and Surles developed a relationship similar to—if not closer than—that ordinarily established between a st epfather and his stepson. Thus, under the circumstances of this case, we hold that Surles is a “person with a legitimate interest” within the m eaning of Code § 20-124.1. Accordi ngly, the trial court erred in holding that Surles lacked standi ng to pursue visitation with Jame s. However, because Surles failed to present any evidence indicating that th e absence of visitation would result in “actual harm” to James, see Part II(A)(2), infra , we also hold that this erro r is harmless as a matter of law.

7 We note that the determinative relationship is not that between the petitioner and the child’s natural parent, but rather, the relationship between the pe titioner and the child.- 13 - 2. Whether the Trial Court Erred inDenying the Petition for Visitation The “liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundame ntal liberty interests recognized by this Court.” Troxel v. Granville , 530 U.S. 57, 65 (2000). That is, “[t]he Due Process Clause ‘protects the fundamental right of parents to make decisions concerning the care, custody and control of their children. ’” Griffin v. Griffin , 41 Va. App. 77, 82, 581 S.E.2d 899, 901 (2003) (quoting Troxel , 530 U.S. at 66). Accordingly, the statut ory best-interests an alysis established by Code § 20-124.3 “‘unconstitutionally infringe s on that fundamental parental right’ if it authorizes a court to ‘disregard and overturn any decision by a fit cust odial parent concerning visitation whenever a third party . . . files a visitati on petition . . . .’” Id. at 82, 581 S.E.2d at 901-02 (quoting Troxel , 530 U.S. at 67). As a result, “whe n fit parents object to non-parental visitation, a trial court should apply ‘the best interests standa rd in determining visitation only after it finds harm if visitation is not ordered .’” Id. at 83, 581 S.E.2d at 902 (quoting Williams v. Williams , 256 Va. 19, 22, 501 S.E.2d 417, 418 (1998)) (emphasis added); see also Denise v.
Tencer , 46 Va. App. 372, 386, 617 S.E.2d 413, 420 (2005). Here, Surles argues that James would suffer “actual harm” without visitation because, in essence, James has emotionally bonded with Surles, and Surles is a positive influence in the child’s life. However, this Court has made cl ear that “[a] ‘vague generalization about the positive influence’ of non-parent visitation cannot satisfy the actual-harm requirement.” Griffin , 41 Va. App. at 85, 581 S.E.2d at903 (quoting In re Berbst , 971 P.2d 395, 396 (Okla. 1998)). Thus, “[t]o justify a finding of actual harm under the clear and convincing burden of proof, the evidence must establish more than the obvious obse rvation that the child would benefit from the continuing emotional attachment with the non-parent.” Id. As we have explained, No doubt losing such a relationshi p would cause some measure of sadness and a sense of loss wh ich, in theory, “could be”- 14 - emotionally harmful. But that is not what we meant by “actual harm to the child’s health or we lfare.” If it were, any non-parent who has developed an emotiona lly enduring relationship with another’s child would satisfy the actual-harm requirement. The constitutional rights of parent s cannot be so easily undermined. Id. at 85-86, 581 S.E.2d at 903 (quoting Williams v. Williams , 24 Va. App. 778, 784-85, 485 S.E.2d 651, 654 (1997), aff’d as modified , 256 Va. 19, 501 S.E.2d 417 (1998)) (citation omitted). Surles, as the party requesti ng visitation with James, bore the burden of producing clear and convincing evidence that James would suffer “actual harm” to his “health or welfare” in the absence of visitation. See id. at 85, 581 S.E.2d at 903. Because Surles failed to produce any evidence—much less clear and convincing evidence—that would support a finding of “actual harm” to James’ “health or welfare,” we hold th at the trial court did not err in denying the petition for visitation. Surles argues, however, that the “actual harm” standard established in Williams and its progeny does not apply under the circumstances of this case. Surles reasons that James’ biological father “did not appear at the hearing . . . to express his opinion as to whether [Surles] should be entitled to court-ordere d visitation.” Surles concludes that, because James’ biological father “voiced no objection as to the visitation,” the “actual harm” standard is inapplicable because he was not, in fact, reques ting visitation “over the objection of the child’s parents.” We disagree. This Court has held that the actual harm st andard does not apply where one parent objects to the third party’s request for vi sitation, but the other parent affi rmatively requests that the third party be allowed visitation. See Yopp , 43 Va. App. at 438, 598 S.E.2d at 765; Dotson v. Hylton , 29 Va. App. 635, 639, 513 S.E.2d 901, 903 (1999). Also, where the third party already possesses, through a valid consent order, joint legal custody of the child and sole physical- 15 - custody of the child, the “actual harm” sta ndard is likewise inapplicable. Denise , 46 Va. App. at 388, 617 S.E.2d at 421. We have never held, however, that, if a biol ogical parent fails to voice an objection to visitation, that failure to obj ect amounts to acquiescence in the third-party’s petition for visitation. Indeed, in Griffin , we held that the “actual harm” standard was applicable where the biological father, who merely “a ppeared and testified that he paid child support, but did not intend to foster a relationship with the child,” di d not actually “request th at visitation be awarded to [the third party].” Griffin , 41 Va. App at 80, 83-84, 581 S.E.2d at 900, 902. Similarly, here, James’ biological father did not “request that visitation be awarded to [Surles].” Id. Although Cullen did not appear at the hear ing and voice a formal objection to visitation, we decline to hold that a biological parent’s silence is the functional equivalent of that parent’s affirmative consent. In a similar vein, Surles contends that Ma yer did not actually objectto his petition for visitation, reasoning that she only te stified that she objecte d to “a specific sche dule of visitation.” We disagree. Mayer never testifie d that she agreed to any form of court-ordered visitation. In fact, when asked whether she was “offering a sc hedule of visitation at all for James,” Mayer responded in the negative. Viewing the eviden ce and all reasonable inferences that may be drawn from that evidence in th e light most favorable to Mayer, it is clear that, although Mayer did not wish for a court order “p rohibit[ing] [Surles from] hav[i ng] contact with James,” she did, in fact, oppose any form of court-ordered visitation. Under the circumstances of this case, th en, neither of James’ biological parents affirmatively requested that Surles receive visitation with James. Cf. Yopp , 43 Va. App. at 438, 598 S.E.2d at 765; Dotson , 29 Va. App. at 639, 513 S.E.2d at 903. Thus, the “actual harm” standard enunciated in Williams applies to Surles’ petition for visitation. See Griffin , 41 Va. App at 80, 83-84, 581 S.E.2d at 900, 902. And, because Surles failed to produce any- 16 - evidence from which it could be determined, unde r the clear and convinci ng standard of proof, that James would suffer actual harm in the abse nce of court-ordered visitation, his request for visitation fails as a matter of law. Accordin gly, although the trial cour t erred in holding that Surles lacked standing to pursue visitation with James, that error was harmless. 3. Whether the Court Erred in Permitting Ma yer to Relocate to Florida with James Finally, Surles contends that the trial c ourt erred in permitting Mayer to relocate to Florida with James, reasoning that, as a result of the move, “the minor child was unable to maintain the regular contact that he had with [Sur les] prior to the move.” Surles, however, never raised this argument before th e trial court. Altho ugh the argument that Mayer should not have been allowed to relocate to Florida is preserved with respect to Surles’ relationship with his own daughter, see Part II(B)(2), infra , Surles never cited his relati onship with James as a ground for preventing Mayer from relocating. Accordingly, we hold that Surles is procedurally barred from raising this issue for the first time on appeal. See Rule 5A:18; see also Roberts v. Roberts , 41 Va. App. 513, 525, 586 S.E.2d 290, 296 (2003). B. Whether the Court Erred in Denying Surles’ Petition for Custody of Kayla and Permitting Mayer to Relocate to Flordia In a separate appeal, Surles contends thatthe trial court erred in denying his petition requesting modification of the May 2003 custody order, or, in the al ternative, an order preventing Mayer from relocating to Florida with his daughter. For the reasons that follow, we hold that the trial court did not e rr in concluding that the best inte rests of Kayla would be served by continuing to reside with her mother, nor did the court err in permitting Mayer to relocate to Florida. We also hold that the trial court di d not abuse its discretion in permitting Mayer to present evidence that, while the parties were coha bitating, Surles was invo lved in relationships with other women. Accordingly, we affirm the judgment below.- 17 - 1. Whether the Court Erred in Denying th e Petition to Amend the Custody Order When a party requests a modification of a preex isting custody order, the trial court, “in determining whether a change in custody should be made, must apply a two-pronged test.” Ohlen v. Shively , 16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993). First, the trial court must decide “whether there has been a [material] change in circumstances since the most recent custody award.” Id. If so, the trial court must next determine “whether a change in custody would be in the best inte rests of the child.” Id. ; see also Keel v. Keel , 255 Va. 606, 611, 303 S.E.2d 917, 921 (1983); Denise , 46 Va. App. at 395, 617 S.E.2d at 425. Under the circumstances of this case, the burden of pr oving each of these elements was upon Surles, the party seeking modification of the May 2003 custody order. See Denise , 46 Va. App. at 397, 617 S.E.2d at 425. The trial court, when denying Surles’ mo tion to amend the May 2003 custody order, did not make an express finding that Surles carri ed his burden of proving a material change in circumstances. Rather, the court merely held “[ t]hat the best interests of the child would be served by . . . [an award of] physical custody to [Mayer].” 8 Thus, we assume, without deciding, that Mayer’s decision to relocate to Florida constituted a materi al change in circumstances, and consider only whether the best in terests of the child w ould be served by continuing to reside with her mother. See Sullivan v. Jones , 42 Va. App. 794, 595 S.E.2d 36 (2004). Code § 20-124.3 lists several factors that the tr ial court must consider when determining whether a change in custody would further the be st interests of the child. As noted by the Virginia Supreme Court, however, “there is no simple, mechanical, cut and dried way to

8 Although the trial court did not spell out th e reasons underlying its decision, Surles does not argue that the trial court failed to “communicate to the parties the basis for [its] decision,” as required by Code § 20-124.3. Cf. Kane v. Szymczak , 41 Va. App. 365, 585 S.E.2d 349 (2003). Accordingly, we do not addr ess this issue on appeal.- 18 - determine whether a change in custody will be in the best interests of children.” Keel , 225 Va. at 613, 303 S.E.2d at 922. Rather, “the trial court is bound to consider evidence sufficient to allow it to make a rational comparison between the circumstances of the two parents as those circumstances affect the children.” Id. Generally, this “requires an analysis to determine which parent is better qualified to provide the highest quality of care to the child and which home will provide the child with the greatest opportunity to fulfill his or her potential.” Turner v. Turner , 3 Va. App. 31, 36, 348 S.E.2d 21, 23 (1986). Ultimately, this Court “afford[s] great deference to the trial court’s determination of what is in the best interests of the child.” Yopp , 43 Va. App. at 439, 598 S.E.2d at 766. Accordingly, unless the cour t fails to consider the required statutory factors or applies an incorrect le gal standard, a trial court’s deci sion as to whether a change in custody would be in the best inte rests of the child is reversible on appeal only if “plainly wrong or without evidence to support it.” Id. ; see also Bailes v. Sours , 231 Va. 96, 101, 340 S.E.2d 824, 828 (1986); Petry v. Petry , 41 Va. App. 782, 790, 589 S.E.2d 458, 462 (2003). Considering the evidence in the light most favor able to Mayer, we hold that the trial court did not err in determining that Kayla’s best in terests would be served by continuing to reside with her mother. Kayla, along with her older ha lf-brother, James, has been in Mayer’s sole custody and care since she was born. If custody of Kayla were tran sferred to Surles, she would no longer have daily contact with her sibling. There can be little doubt that separating the children would adversely affect the relationship Kayla has with James, who is only three years her senior. And, as noted by the Virginia Supr eme Court, “[w]here it is reasonably possible, brothers and sisters of tender year s should be reared together, and have the full benefit of natural ties of affection and interest that such association de velops.” Hepler v. Hepler , 195 Va. 611, 623, 79 S.E.2d 652, 659 (1954); see also Code § 20-124.3(4) (providi ng that the trial court should give “due consideration” to the child’s relationship with, inter alia , “siblings”); Hughes v.- 19 - Gentry , 18 Va. App. 318, 323, 443 S.E.2d 448, 451-52 (1994) (“[T]he effect of the separation of siblings must be and should be considered by a court during both the initial determination of custody and in subsequent determin ations of change of custody.”). Also, under their current work schedules, both parties would be required to provide child care for Kayla. After moving to Florida, Mayer placed Kayla in a “Head Start” program, thereby giving the child a routine day-to -day schedule that al so provides her with certain educational benefits. And, although Surles testified that he made arrangements for Kayla to receive child care if he were awarded custody, he did not produce any evidence indicating that the selected child care facility would be similar innature to a “Head Start” program. Moreover, Surles has, in the past, engaged in acts of domestic violence, whereas no evidence indicates that Mayer is prone to such acts. See Code § 20-124.3(9) (providing that the trial court should consider “[a]ny history of family abuse”). Als o, although Surles is engaged to marry, he did not introduce any evidence as to the identity, background, or character of his fiancée, who would be an important figure in Kayla’ s daily life if Surles were to receive primary physical custody of the child. Finally, although th e parties have struggled to establish an acceptable visitation schedule, Mayer has frequently allowed Surles longer periods of visitation than that to which he is strictly entitled. See Code § 20-124.3(7) (providi ng that the trial court should consider “[t]he propensity of each pare nt to actively support the child’s contact and relationship with the other pare nt, including whether a parent has unreasonably denied the other parent access to or visi tation with the child”). From these facts, the trial court’s determina tion that a change of custody would not be in Kayla’s best interests is not pl ainly wrong or without evidence to support it. Thus, we hold that the trial court did not err in denying the petition to amend the May 2003 custody order.- 20 - 2. Whether the Trial Court Erred in Permitting Mayer to Relocate to Florida “No Virginia statute specifically addresses relocation of a custodial parent.” Petry , 41 Va. App. at 789, 589 S.E.2d at 462. However, upon petition by either parent, “[a] court may forbid a custodial parent from removing a child from the state without th e 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). Before granting a custodi al parent permission to remove a child from the state, “the court must find: (1) a ma terial change in circumstances since the prior decree; and, (2) that relocation w ould be in the children’s best interests.” Wheeler v. Wheeler , 42 Va. App. 282, 288, 591 S.E.2d 698, 701 (2004); see also Parish v. Spaulding , 257 Va. 357, 362, 513 S.E.2d 391, 393 (1999). The party seeking pe rmission to relocate bears the burden of establishing both of these elements, Sullivan , 42 Va. App. at 806, 595 S.E.2d at 42, and, on appeal, the court’s decision gran ting or denying permission to relo cate is not reversible unless “plainly wrong or without evidence to support it,” id. Here, the trial court did not make an expre ss finding as to whether there had been a “material change in circumstan ces” since entry of the May 2003 cu stody order. However, this Court has held that “the relocation of [a] cust odial parent constitutes a material change of circumstances,” thereby vesting the trial court withjurisdiction to modify a prior custody decree. Hughes , 18 Va. App. at 322, 443 S.E.2d at 451; see also Parish v. Spaulding , 26 Va. App. 566, 573, 496 S.E.2d 91, 94 (1998), aff’d , 257 Va. 357, 513 S.E.2d 391 (1999). Because it is undisputed that Mayer moved to Florida prior to the circuit court hearing, the evidence establishes a material change in circumstances. Turning now to the issue pres ented on appeal, we must dete rmine whether the trial court erred in holding that Kayla’s best interests woul d be served by permitting Mayer to relocate to- 21 - Florida. For the reasons that follow, we hold th at the trial court’s deci sion is not plainly wrong or without evidence to support it. Acco rdingly, we affirm the judgment below. As noted by the Virginia Supreme Court, in deciding whether relocation should be permitted, “[t]he welfare of the children [is] the controlling consideration,” and “all other matters” are “subordinate.” Parish , 257 Va. at 362, 513 S.E.2d at 393. For this reason, where the party seeking permission to relocate has al ready moved out of stat e, the trial court may consider any resulting positive or negative changes in the child’s life, regardless of whether those changes occurred after the relocation. See Sullivan , 42 Va. App. at 809-10, 595 S.E.2d at 43-44; see also Parish , 257 Va. at 363, 513 S.E.2d at 394. As we have explained, “[i]f the court could not retroact ively approve a move or order a change in custody[,] . . . havi ng before it evidence that the relocation of the children or the modification of custody would be in the best interests of the childre n, the court would be required to act contrary to the best interests of the children.” Sullivan , 42 Va. App. at 810, 595 S.E.2d at 44 (quoting Parish , 26 Va. App. at 572, 496 S.E.2d at 94). Thus, “‘[w]e [have] decline[d] to establish such a rule.’” Id. (quoting Parish , 26 Va. App. at 572, 496 S.E.2d at 94). Here, when viewed in the light most favorab le to Mayer, the evidence establishes that Kayla is happy, adjusted, and well-settled in her new environment. She has become involved in several community activities, in cluding gymnastics and a local “Head Start” program. Cf. Sullivan , 42 Va. App. at 809, 595 S.E.2d at 43 (affirm ing order permitting relocation where the child, inter alia , had become “integrat[ed] into the [new ] community”). All of Kayla’s maternal relatives—with whom she has developed clos e relationships—reside in Florida. See Petry , 41 Va. App. at 793-94, 589 S.E.2d at 464 (affirm ing order permitting relocation where, inter alia , the trial court “had ample basis to conclude that the children would benef it from the nurture and support of their extended family in New York”). Also, Kayla’s new home “ha[s] a lot more- 22 - room” than the house she occupied in Virginia, including a playroom inside the home. More importantly, Kayla’s allergies—for which she consistently required medication while living in Virginia—no longer trouble her. Kayla also has been geographically removed from an area in which she witnessed a traumatic event, specifi cally, a criminal “reach[ing] over Kayla’s head and grabb[ing] Mayer’s purse.” From these facts, the trial cour t could reasonably have inferred that Kayla’s quality of life im proved significantly duri ng the year after sh e moved to Florida with her mother and half-brother. Unquestionably, Kayla’s relocation may result in less frequent visita tion with her father and paternal relatives. However, “the added di fficulty in maintaining a beneficial relationship between a child and a non-custodial parent should not be the sole basis fo r restricting a custodial parent’s residence except where th e benefit of the relationship cannot be substantially maintained if the child is moved away . . . .” Scinaldi , 2 Va. App. at 575, 347 S.E.2d at 151. Here, the trial court found that “the benefit to Kayla of the relo cation to Florida, outweig hs the detriment [to] her relationship [with] [Surles].” Considering, as discussed above, the positive aspects of the relocation, that factual finding is not plainly wrong or without evidence to support it. See Wheeler , 42 Va. App. at 295, 591 S.E.2d at 705; Goodhand v. Kildoo , 37 Va. App. 591, 602-03, 560 S.E.2d 463, 468 (2002) (affirming decision perm itting relocation, noting that “there was no evidence that the benefits of father’s relations hip with [his daughter] could not be maintained while she lived in Arizona,” and “the evidence presented suggested that the relationship might not be affected at all”). For these reasons, we hold that credible evidence supports the trial court’s conclusion that Kayla’s best interests would be served by permitti ng Mayer to relocate to Florida. Accordingly, we affirm the judgment below.- 23 - 3. Whether the Trial Court Erred in Admitting Evidence of Surles’ Other Relationships Finally, Surles contends that the trial cour t abused its discretion in admitting evidence that he had been involved in relationships w ith various other women while cohabitating with Mayer. We disagree. Generally, the admissibility of evidence “is within the broad discretion of the trial court, and a[n] [evidentiary] ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988); see also Gonzales v. Commonwealth , 45 Va. App. 375, 380, 611 S.E.2d 616, 618 (2005) ( en banc ). When exercising its discretion in the context of a custody dispute, the trial court must “give primary consideration to the bestinterests of the child.” C ode § 20-124.2(B). Accordingly, the trial court has broad latitude to admit any evidence that is relevant to the past, present, or future welfare of the child. See Keel , 225 Va. at 613, 303 S.E.2d at 922 (holding that “the trial court should consider the broadest range of eviden ce” so that it may “make a rational comparison between the circumstances of the two parents as those circumstances affect the children”); see also Armistead v. Armistead , 228 Va. 352, 357, 322 S.E.2d 836, 838 (1984); M.E.D. v. J.P.M. , 3 Va. App. 391, 407, 350 S.E.2d 215, 225 (1986). Here, Surles contends that the trial court abused its discretion because the fact he had “cheated” on Mayer on multiple occasions was not relevant to the issue of whether he should receive custody of his daughter. Be cause this evidence is relevant to Kayla’s best interests, however, we hold that the trial court did not abuse its discretion in permitting Mayer to testify about Surles’ relationships with other women. Specifically, Surles engaged in at least thr ee affairs with other women while cohabitating with Mayer. The third of these affairs precipita ted the parties’ decision to end their relationship,- 24 - resulting in Kayla’s removal from a two-parent to a one-parent hom e. Thus, Surles’ affairs have, in the past, had a direct and nega tive impact on Kayla’s well-being. Moreover, Surles’ inability to refrain from engaging in affairs with other women has created palpable hostility between Kayla’s biological parents, wh ich plainly does not foster the child’s best interests. Thus, the fact that Surl es “cheated” on Mayer has undermined the parties’ present abilities to cooperate, th ereby affecting Kayla’s present a nd future ability to interact freely with both parents. Additionally, Surles’ tendency to engage in affairs with other women bears upon the future stability of his home. Surles testified that he has become engaged to marry. Should he demonstrate the same philandering tendencies with hi s future wife, he woul d be placing Kayla at risk of once again being exposed to a broken home. The fact that Surles has been unable to maintain a monogamous relationship in the past is therefore relevantto Kayla’s future welfare if Surles were to be given primary physical custody of the child. Finally, as noted by the Virginia Supreme C ourt, “[t]he moral climate in which the children are to be raisedis an important consideration for the court in determining custody, and adultery is a reflection of a [paren t’s] moral values.” Brown v. Brown , 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977). The fact that Surles demons trated little or no co mpunction in “cheating” on the mother of his child has some bearing on hi s moral character. Accordingly, this evidence was relevant to the “moral climate” in which Kayl a would be raised if Su rles were to receive custody of the child. See id. (“It is within common knowledge a nd experience that a child learns by example, especially from his parents. Such utter disregard for moral guidance and social standards can have but ill effect upon the young [child].” (internal quotations omitted)); cf. Roe
v. Roe , 228 Va. 722, 727, 324 S.E.2d 691, 694 (1985) (“The father’s continuous exposure of the- 25 - child to his immoral and illicit relationship renders him an unfit and improper cu stodian as a matter of law.”). 9 For these reasons, we hold that the trial court did not abuse its disc retion in determining that evidence of Surles’ relati onships with other women was both relevant and admissible. See
Brown , 218 Va. at 199, 237 S.E.2d at 91 (“An illicit relationship to which minor children are exposed cannot be condoned. Such a relationship must necessarily be given the most careful consideration in a custody proceeding.”); see also Rosenberg v. Rosenberg , 210 Va. 44, 47, 168 S.E.2d 251, 253 (1969) (noting that “adultery is highly relevant to the issue[] of . . . custody”). Accordingly, we affirm the judgment below. C. Attorney’s Fees on Appeal Finally, Mayer has requested an award of the attorneys’ f ees she incurred on appeal. However, because this litigation “addressed appr opriate and substantial issues,” and “neither party generated unnecessary delay or expense in pursuit of its in terests,” Estate of Hackler v. Hackler , 44 Va. App. 51, 75, 602 S.E.2d 426, 438 (2004), we deny Mayer’s request for an award of attorneys’ fees.
III. CONCLUSION For these reasons, we hold that the trial court erred in concluding th at Surles is not a “person with a legitimate interest” within the meaning of Code § 20-124.1. However, because Surles failed to present eviden ce that James would suffer actual ha rm in the absence of visitation, we further hold that the court’s error was harmless. We also hold that the trial court did not err in denying Surles’ request for custody of Kayla or in permitting Mayer to relocate to Florida with

9 Surles also argues that the evidence wa s inadmissible under Rule 1:1 because his conduct occurred “prior to the last order of the Juvenile and Domestic Relations Court concerning Kayla.” However, the fact that th e misconduct occurred prior to an earlier custody order does not render it entirely devoid of proba tive value in a subse quent custody hearing. Accordingly, this argument is without merit.- 26 - Kayla. Further, the trial court did not abus e its discretion in permitting Mayer to introduce evidence that Surles, while cohabitating with Ma yer, engaged in affairs with other women. Thus, we affirm the judgments below. Finall y, we deny Mayer’s request for an award of the attorneys’ fees incurred on appeal. Affirmed.