COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Haley and Senior Judge Annunziata 

Argued at Alexandria, Virginia 

WARREN P. DENISE 

v. Record No. 1833-04-4 

PHILIP C. TENCER OPINION BY 

 JUDGE ROSEMARIE ANNUNZIATA 

PHILIP C. TENCER AUGUST 16, 2005 

v. Record No. 1878-04-4 

WARREN P. DENISE 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Dennis J. Smith, Judge 

 Gregory L. Murphy (Melissa M. Nichols; Stacey L. Papp; Vorys 

Sater Seymour & Pease LLP, on briefs), for Warren P. Denise. 

 James Ray Cottrell (Christopher W. Schinstock; Gannon & Cottrell, 

P.C., on briefs), for Philip C. Tencer. 

 Warren P. Denise (grandfather) appeals the trial court’s decision awarding primary 

physical custody of his minor granddaughter (the child) to the child’s biological father, Philip C. 

Tencer (father). Grandfather contends the trial court abused its discretion by: (1) finding a 

material change in circumstances had occurred; (2) finding it in the child’s best interests to 

award physical custody to father; and (3) making certain evidentiary rulings. 

 Father cross-appeals, presenting five questions that he addressed in four arguments. In 

his first three arguments, father contends the trial court violated his rights under the Due Process 

Clauses of the United States and Virginia Constitutions by continuing joint legal custody in him 

and grandfather and by failing to award him sole legal custody of his child. In these arguments, 
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he takes issue with the trial court’s procedures, interpretations, and application of the law relating 

to a South Carolina order and agreement and his constitutionally protected liberty interest and 

child-rearing autonomy. 

 In his fourth argument, father asserts the trial court’s decision to continue joint legal 

custody lacks sufficient evidence to support it. He argues that his fitness as a parent and 

grandfather’s lack of cooperation regarding the South Carolina order required a different result. 

 We affirm the trial court’s decision. 

BACKGROUND 

 On August 29, 1997, Mary A. Denise (mother) gave birth to the child. She cared for and 

maintained physical custody of the child until her death on September 6, 2001 from terminal 

breast cancer, a diagnosis she received in July 1999. At these times, father was married to his 

present wife, Laura Tencer.1

 Father has never been married to the child’s mother. 

 In 2001, while residing in South Carolina, the child’s mother filed a petition in the 

Richland County, South Carolina family court to terminate father’s parental rights. Grandfather 

was present at the hearing held on February 23, 2001, and “moved to be included as a party to 

this action.” As reflected in the order, “Both parties and the guardian ad litem consented to his 

inclusion as a party, and [grandfather] consented to the jurisdiction of the court. He is a full 

participant to the terms of this settlement agreement.” In its findings of fact and conclusions of 

law, the family court found that grandfather “should be and is hereby made a party to this action 

with the same rights, responsibilities, and obligations as any other party.” The order further 

 1

 The record showed that Laura and Philip Tencer were married in August 1991. They 

have two daughters born in September 1994 and May 1996. Father’s wife testified that she and 

father discussed separating in November 1996 and actually separated in June 1997. According 

to her, the couple reconciled in August or September 1998. 

Father testified that he and the child’s mother worked at the same law firm in California. 

After she became pregnant, she moved to Virginia and father remained in California with his 

wife. 
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reflected that the parties had entered an agreement “which resolved all matters arising from this 

action and addresses the impending custody matters which are expected to arise in the near 

future.” It incorporated the terms of the agreement in its order, providing, inter alia: 

[Mother] shall remain the custodial parent of [the child] until her 

death with liberal visitation accorded [father]; the schedule to be 

agreed upon by [mother] and [father]. Upon the death of [mother], 

the parties have agreed to a joint custody arrangement for the 

minor child with the minor child primarily residing with 

[grandfather] and the goal to unite the minor child and [father] as is 

set forth in the attached agreement. 

 The family court judge also made and included in the order the following findings of fact: 

[A]ll three parties have fully read the attached Agreement, believed 

the Agreement to be fair, and desired that the Agreement be 

approved by the Court. Furthermore, counsel for the parties 

represented that the Agreement had been negotiated over a period 

of several days with each party having an opportunity to review the 

Agreement with his or her counsel prior to . . . signing it . . . . 

 The family court judge dismissed with prejudice mother’s action to terminate father’s 

parental rights, finding that all parties freely and voluntarily entered into the agreement without 

duress or coercion and that “all of the parties have waived their right to a trial and desire that the 

Court approve the Agreement.”2

On December 12, 2001, shortly after mother died, father filed a motion and petition in the 

Fairfax County Juvenile and Domestic Relations District Court, the first of several motions and 

 2

 The one-page agreement, which the court incorporated into its order, provided, in 

pertinent part, for “[j]oint custody between [grandfather] and [father], with [the child’s] primary 

residence with [grandfather] in Virginia and [father] having liberal contact with [the child] with 

the goal of uniting [the child] and [father].” The parties agreed to “seek the advice and counsel 

of an independent professional to assist them to deal with the grief and trauma” associated with 

mother’s death and “to utilize this professional to assist them to make decisions about [the 

child’s] future including the implementation of this Agreement.” Under the agreement, “[e]ach 

party shall have the right to seek relief in the Family Court” in case either party fails to 

participate in the process or implement the agreement or “has an honest difference of opinion 

with recommendations of the independent professional.” 
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petitions seeking court intervention in the visitation and custody dispute between him and 

grandfather. At that time, the child was living with grandfather in Fairfax. 

In his motion, father requested that the child be permitted to visit him in California in 

December 2001 and to vacation with his family in Utah in February 2002. In his petition, father 

alleged that the child “is a child whose custody and visitation require determination pursuant to” 

the February 23, 2001 South Carolina family court order. The juvenile court denied father’s 

request that the child be allowed to visit with him and his family during December 2001; 

however, it granted his motion to allow the child to vacation with the family in February 2002. 

On January 2, 2002, father filed another petition in the juvenile court, this time seeking 

physical custody of the child. Before a hearing could be held, grandfather filed a petition in the 

Fairfax juvenile court seeking primary physical and sole legal custody of the child. 

In response to the parties’ petitions, the juvenile court entered a consent order on June 9, 

2003,3

 declaring that father and grandfather “represented that they have reached an agreement 

related to the custody and visitation of [the child].” Finding that the order is in the child’s best 

interests, the juvenile court decreed that father and grandfather “shall retain joint legal custody of 

the minor child, with physical custody and the primary physical residence of [the child] 

remaining with [grandfather].” The order outlined the responsibilities and rights of the parties, 

and father’s visitation schedule with the child during the summer, Christmas vacation, and spring 

break. The order also required the parties to cooperate and communicate frequently. 

Father subsequently appealed the juvenile court’s June 9, 2003 order to the Fairfax 

County circuit court. After a seven-day ore tenus hearing during which the trial court received 

 3

 From February 2002 until June 2003, the juvenile court conducted several status 

hearings, supervised the parties, addressed the many issues raised by the parties regarding 

visitation with the child, and directed communications between the parties and the experts who 

were to provide assistance to the juvenile court in making its determinations. 
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and considered extensive testimonial and documentary evidence, including transcripts, reports, 

evaluations, and depositions, it entered an order on July 9, 2004 finding that a material change of 

circumstances had occurred since February 2001. It specifically noted that 

Mother [had] died . . . and [that] the relationship between [father] 

and [the child] is significantly more developed than it was in 

February 2001. [The child] is older. She’s beginning the first 

grade in the fall and her situation has changed . . . she’s developed 

a relationship with [father’s] family which she did not have in 

2001. 

The trial court also concluded that the plan for uniting the child with her father and which 

had been incorporated into the South Carolina and Fairfax juvenile court orders,4

 had proved 

difficult, if not impossible, to implement as contemplated. Among the difficulties in 

implementation identified by the trial court was the failure of both the order and agreement to 

clearly define the role of the various “players,” an omission that had led to inconsistent 

interpretations and implementation of the provisions by all involved, including the child’s 

guardian ad litem and her individual therapist. Notably, the trial judge commented that “the 

professionals became the decision-makers [acting in the stead of] the father and the grandfather,” 

frustrating the intent of the agreement “by not allowing the father and the grandfather to develop 

the relationship . . . they needed [in order] to be able to form a working partnership in arriving at 

joint decisions for the best interests of [the child].” The court found the result both untenable 

and unintended under the agreement. 

Notwithstanding the changes in circumstances found to have occurred, the trial court 

rejected father’s contention that they warranted a change in the legal custodial arrangements. It 

identified the following factors as bearing significantly on its resolution of the question: the 

 4

 On October 25, 2001, grandfather filed certified copies of the South Carolina order and 

the agreement with the Fairfax juvenile court, thus domesticating the order with its incorporated 

agreement. 
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relationship that the child had developed with father, his wife, and family; the failures associated 

with the implementation of the South Carolina order and agreement as set forth, supra; the 

several frustrated attempts by father to have visitation with the child; and the child’s continuing 

inability to “change [her] attachment from the grandfather to her father.” The trial court found 

that the latter problem was caused, in part, by the “continuing effect on the grandfather of 

[mother’s] death” and the circumstances in grandfather’s household which “in some ways . . . 

prevented [the child] from moving on.” The trial judge further found that grandfather “has not 

actively supported the contact and relationship with [father] as [well as] he could have.” 

That said, the trial judge determined that, while father had an understanding of the child’s 

needs, grandfather’s understanding of those needs was better because he was with her on a daily 

basis. The court referred to grandfather as the “person who [the child] turns to, and . . . 

[grandfather] fulfills those needs.” 

Based on these findings, the trial court determined that the material changes in 

circumstances found to have occurred did not warrant a modification of the joint legal custodial 

arrangement. It, therefore, denied father’s motion for sole legal custody and continued joint 

legal custody between him and grandfather. The court’s resolution of the issues was based on its 

application of the best interests of the child standard and its conclusion that father had waived the 

rights accorded him as a parent under the United States Constitution.5

 

With respect to father’s petition for sole physical custody, the trial court found that 

father’s relationship with the child “is at a plateau and it can’t go any further unless the child 

 5

 The trial court explained: 

With regard to the “best interests” standard in looking at the other 

situation, I don’t believe it would foster [the child’s] best interests 

at this point for [father] to have sole legal custody . . . [because] 

[grandfather] has a better understanding of her needs at this point 

and should have . . . an equal input into what occurs. 
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lives with him” and that it was in the child’s best interests to award primary physical custody to 

him. Grandfather’s appeal and father’s cross-appeal followed. 

THE ISSUES 

Father argues on appeal that the trial court committed reversible error in refusing to grant 

him sole legal custody. His principal contention is that the trial court applied an incorrect legal 

standard in deciding the child’s legal custody in this case. Father asserts the trial court 

improperly considered and relied on the South Carolina order and agreement in determining the 

standard of review. As a result, he contends the trial court erroneously deprived him of certain 

rights guaranteed to him as a parent under the United States Constitution6

 and disregarded the 

legal standard established in Troxel v. Granville, 530 U.S. 57 (2000). Father also contends that 

the evidence does not support the trial court’s denial of his petition for sole legal custody. 

In his appeal, grandfather challenges the award of primary physical custody to the father 

on the ground the evidence is insufficient to support the decision. He also challenges the 

propriety of certain evidentiary rulings, claiming they were erroneous and prejudicial to his case. 

We address each party’s claim in turn. 

FATHER’S ARGUMENTS 

I. The Proper Legal Standard to Apply 

Citing Troxel v. Granville, 530 U.S. 57 (2000); Williams v. Williams, 256 Va. 19, 501 

S.E.2d 417 (1998); and Griffin v. Griffin, 41 Va. App. 77, 581 S.E.2d 899 (2003), as primary 

authorities, father argues that the trial court’s decision awarding grandfather joint legal custody 

 6

 Although father also argued in his brief a violation of Virginia’s Constitution, he failed 

to demonstrate that he made that argument below. The record shows that father objected to the 

trial court’s order solely “on the basis of his fundamental liberty interest under the U.S. 

Constitution.” In other stated exceptions, father failed to state what constitution he was relying 

on in arguing in favor of his “constitutionally protected liberty interest” to rear his own child. 

Therefore, we limit our analysis to those protections afforded under the United States 

Constitution, the only one specified pursuant to Rule 5A:20(c). 
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“in a decree separate from the South Carolina Order contravenes the Father’s constitutionally 

protected fundamental liberty interest under the Fourteenth Amendment to the Constitution of 

the United States to raise his daughter without interference from a third party or the state, absent 

clear and convincing evidence that he is unfit.” Father summarizes his argument as follows: 

For the trial court to have completely denied the Father’s request 

for sole custody of [the child], therefore, it must have found that by 

clear and convincing evidence that the Father is an unfit parent, 

that [the child] will suffer “actual harm” if she did not visit, let 

alone live with the Grandfather. 

To be sure, grandfather failed to either allege or prove father’s unfitness. However, we 

find that father’s reliance on Troxel, Williams, and Griffin is misplaced, and we find no error in 

the trial court’s denial of father’s petition to place sole legal custody of the child in him. 

A. Troxel v. Granville 

In Troxel, the Supreme Court examined and discussed a parent’s constitutional right in 

the context of a dispute between the child’s parents and a third party, namely, the child’s 

grandparents. A Washington statute, which provided that “‘[a]ny person may petition the court 

for visitation rights at any time,’” was at issue. Troxel, 530 U.S. at 61. It authorized the court to 

“order visitation rights for any person when visitation may serve the best interest of the child 

whether or not there has been any change of circumstances.’” Id. Although never married, 

Troxel’s son and Granville had two daughters together. Id. at 60. They separated in 1991 and, in 

1993, Troxel’s son committed suicide. Id. Five months after the suicide, Granville sought to 

limit visitation for the paternal grandparents, Jenifer and Gary Troxel. Id. at 60-61. The trial 

court granted the Troxels’ petition for visitation pursuant to the Washington visitation statute. 

Id. at 61. On appeal, the Washington Supreme Court found the statute facially unconstitutional, 

effectively striking it down. Id. at 63. 
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Discussing the propriety of governmental intrusions into the parent-child relationship, 

Justice O’Connor, writing for a plurality of four justices, underscored the historical roots of the 

fundamental principles at issue. See id. at 65-66. The Court recognized that “the interest of 

parents in the care, custody, and control of their children – is perhaps the oldest of the 

fundamental liberty interests recognized by this Court.” Id. at 65, 66 (citing prior United States 

Supreme Court precedent recognizing the fundamental right of parents to make decisions 

concerning the care, custody, and control of their children). It also allied that fundamental 

liberty interest to the presumption that a fit parent will act in the best interest of the child. Id. at 

68 (citing Parham v. J.R., 442 U.S. 584, 602 (1979)). 

Moving from principle to practice, Justice O’Conner noted that the trial court’s 

“‘commonsensical’” conclusion that it “‘is normally in the best interest of the children to spend 

quality time with the grandparent’” unless there is proof that such contact would adversely affect 

the children incorrectly accorded the grandparents a presumption in their favor and “directly 

contravened the traditional presumption that a fit parent will act in the best interest of his or her 

child.” Id. at 69. A presumption favoring the grandparent’s right to visitation failed to protect 

the parent’s fundamental constitutional right to make decisions concerning the rearing of her 

children. Id. at 69-70.7 Such was the fundamental infirmity of the statute: 

Once the visitation petition has been filed in court and the matter is 

placed before a judge, a parent’s decision that visitation would not 

be in the child’s best interest is accorded no deference. Section 

26.10.160(3) contains no requirement that a court accord the 

parent’s decision any presumption of validity or any weight 

whatsoever. Instead, the Washington statute places the 

best-interest determination solely in the hands of the judge. 

 7

 The Court cited the case of Hoff v. Berg, 595 N.W.2d 285 (N.D. 1999), to further 

elucidate the point. In Hoff, the North Dakota Supreme Court held that its grandparent visitation 

statute was unconstitutional because, given the presumption in favor of the grandfather, the state 

by its statute “forc[ed] parents to accede to court-ordered grandparental visitation unless the 

parents are first able to prove such visitation is not in the best interests of their minor child.” 595 

N.W.2d at 291-92. 
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Should the judge disagree with the parent’s estimation of the 

child’s best interests, the judge’s view necessarily prevails. Thus, 

in practical effect, in the State of Washington a court can disregard 

and overturn any decision by a fit custodial parent concerning 

visitation whenever a third party affected by the decision files a 

visitation petition, based solely on the judge’s determination of the 

child’s best interests. 

Id. at 67. 

Beyond the articulation of the fundamental constitutional principle at issue, the United 

States Supreme Court’s decision in Troxel is limited to the specific due process infirmities of the 

Washington statute; it left to the state courts the task of developing the law to be applied in 

resolving child custody and visitation disputes between a parent and third party.8

 That said, the 

overarching analytical principle that derives from Troxel and its progeny can be identified as 

focused on the need to determine and apply the correct burden of proof in light of the 

presumption that a fit parent acts in the best interest of the child. 

B. Williams v. Williams

In Williams v. Williams, 256 Va. 19, 501 S.E.2d 417 (1998), the Virginia Supreme Court 

had earlier examined and reaffirmed a parent’s fundamental right to care for and make decisions 

regarding his or her child. There, the paternal grandparents filed a petition pursuant to Code 

§ 20-124.2(B) seeking visitation with their granddaughter after the child’s mother and father 

 8

 The New Jersey Supreme Court has observed that 

[c]ourts across the country have wrestled with the issue of 

grandparent visitation both before and after Troxel. In general, 

they have engaged in one of two modes of analysis: 

(1) interpreting the statutes to require satisfaction of a harm 

standard in order to overcome the presumption in favor of a fit 

parent’s decision or (2) avoiding the articulation of any standard at 

all and analyzing the statutes on a case-by-case basis. 

Moriarty v. Brandt, 827 A.2d 203, 218 (N.J. 2003) (explaining that “Troxel implied that either 

approach would be acceptable”). 
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refused to allow them further visitation with the child. The child’s parents lived together, and no 

allegations of parental unfitness were proffered or established. Id. at 20, 501 S.E.2d at 417. The 

trial court found “that the child’s best interests would be served by having visitation with her 

grandparents” and ordered visitation against the wishes of both parents. Id. at 21, 501 S.E.2d at 

417. The parents appealed, arguing “that Code § 20-124.2(B), as it pertains to nonparent 

visitation, interferes with their right to autonomy in child rearing and, hence, violates the 

Fourteenth Amendment to the United States Constitution.” Id. 

On appeal to this Court, we recognized that “the right of the parents in raising their 

children is a fundamental right recognized by the Fourteenth Amendment,” and “[s]tate 

interference with a fundamental right must be justified by a ‘compelling state interest.’” 

Williams v. Williams, 24 Va. App. 778, 783, 485 S.E.2d 651, 654 (1997) (explaining that 

protecting a child’s health or welfare is a recognized compelling state interest), modified and 

affirmed on appeal, 256 Va. 19, 501 S.E.2d 417 (1998). Thus, we held that the burden of proof 

required to support a court’s award of visitation with a grandparent over the parent’s objection is 

one of “actual harm.” Id. at 784-85, 485 S.E.2d at 654. 

For the constitutional requirement to be satisfied, before visitation 

can be ordered over the objection of the child’s parents, a court 

must find an actual harm to the child’s health or welfare without 

such visitation. 

 The “best interests” standard is considered in determining 

visitation only after a finding of harm if visitation is not ordered. 

Without a finding of harm to the child, a court may not impose its 

subjective notions of “best interests of the child” over the united 

objection of the child’s parents without violating the constitutional 

rights of those parents. In this regard, the parents’ constitutional 

rights take precedence over the “best interests” of the child. 
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Id. We reversed and remanded for the trial court to give proper deference to the parental 

presumption.9

 

C. Griffin v. Griffin

Two years ago, we decided Griffin v. Griffin, 41 Va. App. 77, 581 S.E.2d 899 (2003). 

There, Andrea Griffin, wife of Elbert Griffin, conceived and gave birth to a child while they 

were separated. Id. at 79-80, 581 S.E.2d at 900. Husband believed he was the child’s father and 

treated the child as his own. Id. at 80, 581 S.E.2d at 900. Wife and the child lived with wife’s 

mother but allowed husband weekly visitation with the child. Id. A short time later, a paternity 

test established that husband was not the child’s father. Id. Upon learning the results of the 

paternity test, wife denied him further visitation. Id. The biological father paid child support, 

but he was not involved with the child, and he did not request that husband obtain visitation. Id. 

The trial court held for husband, “stating that the ‘best interests’ of the child would be served by 

ordering visitation over the mother’s objection and that not doing so would be ‘detrimental’ to 

the child.” Id. at 81-82, 581 S.E.2d at 901. 

Reciting the rule explained in Williams, “when fit parents object to non-parental 

visitation, a trial court should apply ‘the “best interests” standard in determining visitation only

after it finds harm if visitation is not ordered,’” Griffin, 41 Va. App. at 83, 581 S.E.2d at 902 

(quoting Williams, 24 Va. App. at 784-85, 485 S.E.2d at 654), we reversed the trial court, 

holding there was no clear and convincing evidence of “actual harm” as required by Williams. 

Id. at 85-86, 581 S.E.2d at 903 (explaining that “the trial court collapsed the two legal standards 

 9

 The Virginia Supreme Court affirmed our decision and likewise reversed the trial court 

decision; however, it decided to dismiss the proceeding rather than remand it, after determining 

there was no evidence that the child would be harmed if visitation were not ordered. Williams, 

256 Va. at 22, 501 S.E.2d at 418. 
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together,” and “treated the actual-harm requirement as simply a restatement of the best-interests 

test”). 

II. Analysis

As these decisions make manifest, while parental rights have long been recognized under 

the common law, historically, grandparents have not enjoyed similar preferential treatment. See

Troxel, 530 U.S. at 96-97 (Kennedy, J. dissenting) (generally, “contemporary state-court 

decisions acknowledge that ‘[h]istorically, grandparents had no legal right of visitation,’ and it is 

safe to assume other third parties would have fared no better in court”); see also Linder v. 

Linder, 72 S.W.3d 841, 855 (Ark. 2002) (“[G]randparental visitation has no historic roots in the 

common law but rather is a legislated creature of the late twentieth century”; listing other state 

cases stating the same fact.). Therefore, grandparents generally come before the court merely as 

a “‘Person with a legitimate interest.’” Code § 20-124.1 (defining and listing examples of 

persons other than fit natural parents who are considered persons with a legitimate interest). 

However, it surely does not follow that rights analogous to the constitutional rights 

enjoyed by a parent may not be established by other means, the most salient of which are 

court-adjudicated findings that a non-parental actor, such as a grandparent, is acting and will 

continue to act in accordance with the best interests of the child and that the non-parental party is 

a proper custodian. Were that not the case, adoptive parents, relatives, and other non-parental 

third parties, including the state, could not be found proper parties to whom an award of custody 

may be made. 

We conclude that the decisions in Troxel, Williams, and Griffin are inapposite and do not 

support father’s argument because they involved situations in which a non-parent with no 

custodial rights requested visitation against the wishes of parents whose constitutional right to 

child-rearing autonomy had not been in the least altered. Troxel did not address the factual 
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circumstance that confronted the trial court here. Moreover, to apply the Troxel parental 

presumption in this case, where grandfather shared joint legal custody with the father and had 

sole or primary physical custody, not only disregards the factual distinctions that exist, but also 

renders the principle of custody and the status of custodian meaningless.10 

Two Virginia Supreme Court cases, albeit decided prior to Troxel, support the conclusion 

that the trial court applied the correct legal principles in this case. In McEntire v. Redfearn, 217 

Va. 313, 227 S.E.2d 741 (1976),11 a mother and her two children (born in 1968 and 1969) 

resided with the maternal grandmother until the mother died in 1971. Id. at 313-14, 227 S.E.2d 

at 742. The children’s father “who lived elsewhere, had failed to support the children until he 

was required to pay [child support] by a court order entered shortly before the mother’s death.” 

Id. at 314, 227 S.E.2d at 743. 

In a custody proceeding during August 1971 the Alexandria 

juvenile court ordered, after a hearing on the merits at which the 

father was present, that custody of the two children “be assumed 

by the Court and [that they be] temporarily placed with [the 

grandmother].” No appeal was taken by the father from that action 

in juvenile court. 

Id. at 314, 227 S.E.2d at 742. 

 Four years later, in 1975, the father filed a petition in juvenile court seeking custody of 

the children. Id. at 313, 227 S.E.2d at 742. The juvenile court awarded custody to the father, as 

did the trial court on appeal by the grandmother. Id. at 314, 227 S.E.2d at 742. The trial court 

 10 “‘Joint custody’ means joint legal custody where both parents retain joint responsibility 

for the care and control of the child and joint authority to make decisions concerning the child 

even though the child’s primary residence may be with only one parent . . . .” Code § 20-124.1. 

“‘Sole custody’ means that one person retains responsibility for the care and control of a child 

and has primary authority to make decisions concerning the child.” Id. See also Code 

§ 16.1-228 (defining “‘Legal custody’” as, inter alia, “a legal status created by court order”). 

11 McEntire was cited by the trial court in its June 11, 2004 opinion letter to support its 

conclusion that father “knowingly waived the constitutional presumption to which he was 

entitled as the sole surviving biological parent of [the child].” 
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“ruled the grandmother had the burden of proving by clear and convincing evidence that the 

father was unfit and that the best interests of the children would be promoted by granting custody 

to the grandmother.” Id. 

Relying on its earlier decision in Dyer v. Howell, 212 Va. 453, 184 S.E.2d 789 (1971), 

the Supreme Court held that the trial court ascribed and employed the wrong burden of proof. 

McEntire, 217 Va. at 315, 227 S.E.2d at 743.12 The Court explained its decision, as follows: 

[M]ore than four years before the father instituted the present 

proceeding, the juvenile court, after a hearing at which the father 

was present, made an unappealed adjudication that custody should 

be assumed by the Court to the exclusion of the father. This order 

was a determination by a court of competent jurisdiction of the 

custody question on its merits based upon then-existing facts. The 

order further provided for temporary placement of the children 

with the grandmother. Consequently, the father here, like the 

father in Dyer, when he instituted the present proceeding, was not 

clothed with the parental presumption generally accorded natural 

parents in a dispute with non-parents, because his parental 

custody rights were altered by the 1971 order. We hold, therefore, 

that in this proceeding the welfare of these children is the 

paramount consideration, and that the burden was upon the father 

to prove the circumstances had so changed since the 1971 order 

that it would be in the children’s best interests to transfer custody 

to him. 

Id. at 315-16, 227 S.E.2d at 743 (emphasis added). 

 Two months after its decision in McEntire, the Virginia Supreme Court decided Watson 

v. Shepard, 217 Va. 538, 229 S.E.2d 897 (1976), a case involving a custody dispute between the 

natural mother and paternal relatives who were seeking to adopt the child. In Watson, the 

mother had executed a notarized statement which stated, “‘I give my consent for [the Shepards, 

the child’s paternal aunt and the aunt’s husband] to have custody of [my] daughter . . . .’” Id. at 

540, 229 S.E.2d at 898. The mother explained that she was unable to properly care for the child 

 12 Although McEntire was a pre-Troxel case, we find it still viable and its principles 

applicable because the facts and circumstances there and in this case are distinguishable from 

Troxel and, thus, do not require application of Troxel and our case law applying it. 
- 16 -

at the time and felt the child “‘would be better off with [the Shepards] . . . until I could get 

myself straightened out.’” Id. at 539-40, 229 S.E.2d at 898. After hearing evidence, including 

testimony from a juvenile court officer that the mother said “‘she expected to try to regain the 

custody when she settled down,’” the juvenile court entered an order awarding the Shepards 

custody and granting the parents reasonable visitation. Id. at 540-41, 229 S.E.2d at 899. Two 

years later, the mother petitioned to regain custody of her child. At the hearing on the petition, 

the Shepards expressed a desire to adopt the child. Id. at 542-43, 229 S.E.2d at 900. The trial 

court “found ‘it is in the best interests of the said child that she remain in the custody of the said 

Shepards.’” Id. at 544, 229 S.E.2d at 901. As to the Shepards’ adoption petition, the trial court 

found that the mother “‘is not a fit person to have the custody of the said infant child; and that it 

is in the best interests of the [child] that she be adopted by [the Shepards].’” Id. The Virginia 

Supreme Court upheld the trial court’s decision to apply a best interests test and its decision 

denying custody to the mother. Id. Regarding the adoption request, the Supreme Court reversed 

the trial court’s decision, which granted the Shepards’ request to adopt. Id. As to custody, the 

Court reasoned: 

[The] juvenile court order relieved the mother of [the child’s] 

custody and awarded her custody to the Shepards. That order was 

not merely pro forma, as the mother now contends, but it was 

based upon her voluntary relinquishment of custody, as evidenced 

by a written statement executed by her, upon results of a thorough 

investigation, and upon a hearing by a court of competent 

jurisdiction at which the report of investigation was considered and 

the evidence heard. Consequently, the mother’s parental custody 

rights were altered and for her to be entitled to a later change in 

custody, the burden was upon her to show the circumstances had 

so changed since entry of the foregoing order that it would be in 

[the child’s] best interests to transfer custody to her; the burden 
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was not upon the Shepards, as the mother argues, to show parental 

unfitness. 

Id. at 544-45, 229 S.E.2d at 901 (emphasis added).13 

We perceive no principled basis for reaching a different result here. Father twice 

consented, by court order, to place primary physical custody and joint legal custody in 

grandfather: once in South Carolina and again in a consent order filed in the Fairfax juvenile 

court. Presumptively acting in the child’s best interests, the father agreed that the child’s best 

interests were served by placing custody in grandfather. He also implicitly and necessarily 

agreed that grandfather, as custodian, was acting and would continue to act in the child’s best 

 13 Similarly, this Court has not uniformly applied the standard enunciated in Troxel in 

every custody dispute between a parent and grandparent. In cases that fall beyond the 

parameters of Troxel factually, we have reasoned that a different burden of proof may properly 

be applied. For example, in Dotson v. Hylton, 29 Va. App. 635, 513 S.E.2d 901 (1999), mother 

was awarded sole physical custody and joint legal custody of the child, which she shared with 

her divorced husband. Id. at 637, 513 S.E.2d at 902. The father was later incarcerated, at which 

time the mother petitioned for sole physical custody, however, the father requested “reasonable 

visitation” for him and the paternal grandmother. Id. “[T]he trial court granted the mother sole 

custody of the child[, and] specifically found that denial of visitation with the father and 

grandmother would not be in the best interests of the child.” Id. at 638, 513 S.E.2d at 903. On 

appeal, we upheld the visitation award, explaining that the Williams standard does not apply 

when one parent objects to visitation and the other parent requests it. Id. at 639, 513 S.E.2d at 

903. 

 Subsequently, in Yopp v. Hodges, 43 Va. App. 427, 598 S.E.2d 760 (2004), the mother of 

a child denied the maternal grandparents visitation with the grandchild. Id. at 431, 598 S.E.2d at 

762. The grandparents petitioned the court for visitation. Id. The child’s natural father who had 

no contact with the child “expressly requested that the maternal grandparents be given visitation 

rights.” Id. at 432, 598 S.E.2d at 762. The trial court found that visitation with the grandparents 

“‘would be in the child’s best interest,’” and it granted the maternal grandparents’ petition. Id. at 

432, 598 S.E.2d at 763. We distinguished the holding in Williams and Troxel and held: 

The standard enunciated in Dotson applies here because father 

expressly supported the maternal grandparents’ request for 

visitation with the child and the mother has never asserted, and 

does not now assert, that father is an unfit parent who should be 

deemed legally incapable of participating in parental decision 

making. 

Yopp, 43 Va. App. at 438, 598 S.E.2d at 765. 
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interests. The subsequent court order confirmed that factual conclusion. Thus, while grandfather 

is not accorded a constitutionally-derived legal presumption that he will act in the best interest of 

the child and is thus a proper custodian, he was vested with custodial status and all its attendant 

legal attributes by the father’s agreement embodied in two court orders. See Lindsay v. Lindsay,

218 Va. 599, 602-04, 238 S.E.2d 817, 819 (1977) (consent order was contractual modification 

and binding upon the parties (citing Durrett v. Durrett, 204 Va. 59, 63, 129 S.E.2d 50, 53 

(1963))). 

As a matter of legal definition and fact, according grandfather the status of custodian 

gave him precisely the same child-rearing autonomy as that enjoyed by a parent. As the child’s 

legal custodian, grandfather was vested with the “right to have physical custody of the child, to 

determine and redetermine where and with whom [the child] shall live, the right and duty to 

protect, train and discipline [the child] and to provide [the child] with food, shelter, education 

and ordinary medical care . . . .” Code § 16.1-228. There is nothing in our jurisprudence that 

supports the conclusion that legal and/or physical custody placed in a non-parent is subject to 

diminished protection under the law, simply because the individual seeking modification of that 

status is the child’s parent. See McEntire, 217 Va. at 315-16, 227 S.E.2d at 743 (father was not 

clothed with parental presumption after court of competent jurisdiction made a judicial 

determination reflected in valid order); Albert v. Ramirez, 45 Va. App. 799, 807-09, 613 S.E.2d 

865, 868-70 (2005) (natural mother was not entitled to Troxel and Williams presumption in her 

motion to modify custody and visitation where juvenile court entered valid consent decree 

providing stepfather with joint custody).14 

 14 Additionally, the trial court in Fairfax approved the agreement. See Albert, 45 

Va. App. at 807-08, 613 S.E.2d at 869 (discussing binding nature of valid consent decree). 
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We conclude that the trial court properly applied the best interests test to determine the 

child’s custody in this case. Where father is no longer “clothed with the parental presumption 

generally accorded natural parents in a dispute with non-parents, . . . it follows that the best 

interests test is appropriately applied in resolving the custody dispute between father and 

grandparent.” McEntire, 217 Va. at 316, 227 S.E.2d at 74315; see also Watson, 217 Va. at 544, 

229 S.E.2d at 901; Dyer, 212 Va. at 456, 184 S.E.2d at 792. We, furthermore, perceive nothing 

in Troxel that compels a different result. Despite the Supreme Court’s clear and broad 

articulation of the constitutional rights at issue in such dispute, the opinion in Troxel is limited in 

nature. The plurality rested its “decision on the sweeping breadth of [the Washington statute] 

and the application of that broad, unlimited power in this case,” and it declined to prescribe the 

degree of deference or define the standard of review required before a non-parent could obtain 

visitation or custody. 530 U.S. at 73. Clearly, Troxel did not define the burden of proof to be 

applied or the factors to be established and considered when the court is faced with a custody 

dispute between a grandparent and a parent, both of whom have custodial rights. Thus, the 

results are the same, whether we denominate father’s agreement, as embodied in the court orders, 

to be a relinquishment of at least some of the constitutional rights enunciated by Troxel16 as the 

trial court did, or whether we simply find that his agreement, as incorporated into two court 

orders, factually and, as a matter of law, established an equality of interests and rights as between 

 15 Although McEntire was a pre-Troxel case, we find it still viable and its principles 

applicable under the facts and circumstances here. See, infra n.12. 

16 In its opinion letter, the trial court carefully circumscribed the breadth of father’s 

“waiver,” when it held that “a change from joint legal custody to sole custody” in grandfather 

“would be an additional restriction of [father’s] constitutional right,” and something to which 

father did not agree, unlike his “relinquishment of his protected constitutional right [which] 

occurred when he consented to joint legal custody.” Thus, father only agreed to and, according 

to the trial court, waived joint legal custody and primary physical custody. 
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father and grandfather, analogous to the equality posited when two fit parents who are both 

deemed to be acting in the child’s best interests dispute custody.17 

Finally, we note that an initial custody determination was not at issue before the court. 

Rather, the parties requested a modification of a preexisting custody order. 

“A trial court, in determining whether a change of custody should 

be made, must apply a two-pronged test: (1) whether there has 

been a [material] change in circumstances since the most recent 

custody award; and (2) whether a change in custody would be in 

the best interests of the child. Whether a change of circumstances 

exists is a factual finding that will not be disturbed on appeal if the 

finding is supported by credible evidence.” 

Ohlen v. Shively, 16 Va. App. 419, 423, 430 S.E.2d 559, 561 (1993) (quoting Visikides v. Derr, 

3 Va. App. 69, 70, 348 S.E.2d 40, 41 (1986)). 

After a material change of circumstances has been established, a 

trial judge, in determining the best interests of a child, may 

properly consider the factors set forth in Code § 20-107.2. Those 

factors are normally considered in a custody hearing and include 

any “other factors as are necessary to consider the best interests of 

the child or children.” Code § 20-107.2(7). In addition, the statute 

further instructs that the court “shall give primary consideration to 

the welfare of the child or children.” Id. The use of these factors 

clearly satisfies the requirement that “a change in custody . . . be in 

the best interests of the child.” 

Id. at 423-24, 430 S.E.2d at 561 (citations omitted). 

 17 Father argues, inter alia, that any waiver he consented to was limited, citing to the 

agreement language which he alleges envisioned a resumption of custody in father. Even 

assuming we accept his characterization of the nature of the waiver, the result remains 

unchanged. Once custody is posited in grandfather, together with the presumption that 

grandfather will act in the child’s best interests, grandfather remains clothed with that custodial 

right and attendant presumption until he himself waives it by voluntarily relinquishing custody, 

or alternatively, a court of law divests grandfather of that right by finding that it no longer is in 

the best interests of the child to remain within his custody. Indeed, that latter resolution of the 

issue is precisely what occurred in this case when the court determined that physical custody in 

the grandfather, as established by the South Carolina order, should terminate and be awarded to 

father. 
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Father agreed to be bound by the South Carolina order, which reflected the mother’s 

desire for the grandfather to act as the child’s custodian until father established a more sound 

relationship with the child. The agreement was prepared in contemplation of her death. Thus, 

her passing was not a sudden, unplanned event, which they could not have anticipated. The 

South Carolina family court entered a seven-page custody order after hearing testimony from the 

parties, reviewing the record in the case, and evaluating the agreement. The parties requested the 

family court to approve the agreement and incorporate it into the final order along with other 

related matters. In its concluding paragraph, the family court judge “ordered that the Agreement 

attached hereto and the terms included herein are hereby approved and adopted as the Order of 

this Court, to be fully enforceable by the contempt powers of this Court.” The fact that a valid 

order was entered in South Carolina, registered and filed in Fairfax, after which father agreed to 

the entry of a subsequent consent order reiterating grandfather’s right to joint legal custody, 

convinces us that the situation here is readily distinguishable from a dispute between a parent 

and non-parent, like the situations in Troxel and Williams. “A party must obey an existing 

custody order until a modification order supersedes it.” Johnson v. Johnson, 26 Va. App. 135, 

146, 493 S.E.2d 668, 673 (1997). 

Because the matter on appeal from the circuit court was not an initial custody and 

visitation determination, father, as the party seeking to modify the prior custody and visitation 

consent order, bore the burden of proving that a material change of circumstances had occurred 

since the entry of the consent order and that a change in visitation would be in the best interests 

of the child. See Code § 20-108; Albert, 45 Va. App. at 807, 613 S.E.2d at 868 (finding that, 

“[u]nlike Troxel, this case involves not an initial” custody or visitation petition filed by a 

non-parent, but “an attempt on the part of the natural parent to terminate custody granted to a 

[non-parent] pursuant to a final valid consent decree”). 
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We, therefore, find no error or abuse of discretion in the trial court’s denial of father’s 

motion to vest sole legal custody of the child in him at this time. The court neither applied the 

incorrect legal standard nor violated any constitutional right enjoyed by father in this case. 

GRANDFATHER’S ARGUMENTS 

Finally, we turn to grandfather’s contentions on appeal. He argues that the court erred in 

finding that a material change of circumstances had occurred which warranted awarding physical 

custody of the child to father on the ground the evidence failed to support the result. We 

disagree and find no error. 

When a court hears evidence at an ore tenus hearing, its decision is entitled to great 

weight and will not be disturbed on appeal unless plainly wrong or without evidence to support 

it. Piatt v. Piatt, 27 Va. App. 426, 432, 499 S.E.2d 567, 570 (1998). On appeal, we view the 

evidence in the light most favorable to the prevailing party, granting that party the benefit of any 

reasonable inferences. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003). 

“That principle requires us to discard the evidence of the appellant which conflicts, either 

directly or inferentially, with the evidence presented by the appellee at trial.” Id.; see also

Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 (1995) (citing McGuire v. 

McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990)). Consistent with the principle that 

an appellate court does not substitute its judgment for that of the trial court, we are bound by the 

credibility and weight determinations made by the trier of fact and its decision to accept or reject 

a witness’ testimony. Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 

(1986); see also Richardson v. Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 152 (1991). 

Applying the best interests of the child standard and reviewing the evidence in the light most 

favorable to father, we find no error. 
- 23 -

We, likewise, find no error in the court’s decisions on certain evidentiary matters in the 

case. Grandfather contends, first, that the trial court improperly admitted testimony of certain 

witnesses on the ground that he was prevented from taking their depositions, “resulting in a trial 

by ambush” precluding him from “impeaching or effectively cross-examining these witnesses.”18 

Rule 4:12(a) allows “[a] party, upon reasonable notice to other parties and all persons 

affected thereby, [to] apply for an order compelling discovery.” Rule 4:12(b)(2) provides that 

the court in which an action is pending may sanction a party for “failure to comply with [such 

an] order.” The record shows that grandfather filed a motion to compel on November 7, 2003, 

however, the motion did not include requests for information he claims was not disclosed. In his 

briefs, grandfather did not direct us to where in the record he filed such a motion. Absent a 

motion to compel and entry of an order, the trial court was not required to apply any sanctions 

pursuant to Rule 4:12(b). 

Moreover, the record shows that father disclosed his witnesses, but that grandfather did 

not timely act to depose them. Thus, even if a motion to compel had been filed and granted, we 

cannot say that the trial court abused its discretion in refusing to exclude the evidence. 

Grandfather’s contention that evidence of the father’s marital stability and the counseling 

he and his wife received was improperly admitted at trial is likewise without merit. The basis of 

his contention is that the Tencers refused to answer deposition questions related to the issues 

they were later permitted to address at trial and that the Tencers had additionally moved to quash 

the depositions of certain counselors who later at trial were permitted to testify on the same 

matters. 

 18 Ultimately, the court permitted grandfather to take the deposition of one of the ten 

witnesses after four witnesses had already testified at trial. 
- 24 -

As with grandfather’s other discovery complaint, the record fails to show he filed a 

motion to compel pursuant to Rule 4:12(a). Absent such a motion and attendant order, we 

cannot say the trial court abused its discretion. 

In addition, the trial court ruled, pursuant to Code § 20-124.3:1, that grandfather could 

not obtain privileged and confidential information from the Tencers’ mental health care 

providers. Grandfather contends he had a right to obtain such information to rebut testimony 

from the Tencers’ friends and from the Tencers about the stability of their marriage. The trial 

court’s ruling regarding the mental health professionals is not before us, so we decline to address 

grandfather’s argument on that issue. Moreover, the record shows that grandfather received a list 

of witnesses and had an opportunity to timely depose or move to compel discovery of them 

regarding the Tencers’ marital stability, but did not do so. Finally, we note that grandfather had 

an opportunity to cross-examine the witnesses at trial. Accordingly, we are unable to find that 

the trial court committed reversible error regarding discovery. 

For the reasons stated, we affirm the trial court. 

Affirmed.