COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Hale y and Senior J udge Annunziata Argued at Alexandria, Virginia

WARREN P. DENISE

v. Record No. 1833-04-4

PHILIP C. TENCER OPINION BY JUDGE ROSEMARIE ANNUNZIATA PHILIP C. TENCE R AUGUST 16, 2005

v. Record No. 1878-04-4

WARREN P. DENISE

FROM THE CIRCUIT COUR T 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 th e trial court’s decision awarding primary physical custody of his minor granddaughter (the ch ild) to the child’s biological father, Philip C. Tencer (father). Grandfather contends the tria l 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 eviden tiary rulings. Father cross-appeals, presenti ng five questions that he addressed in four arguments. In his first three arguments, father contends the tria l court violated his righ ts under the Due Process Clauses of the United States and Virginia Constit utions by continuing jo int legal custody in him and grandfather and by failing to award him sole legal custody of his chil d. In these arguments,- 2 - he takes issue with the trial cour t’s procedures, interpretations, a nd 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 tr ial 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 cooperati on regarding the South Carolina or der required a different result.

We affirm the trial court’s decision.

BACKGROUND On August 29, 1997, Mary A. Denise (mother) ga ve 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 ma rried to the child’s mother. In 2001, while residing in South Carolina, th e child’s mother filed a petition in the Richland County, South Carolina family court to term inate 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 or der, “Both parties and the guardian ad litem consented to his inclusion as a party, and [grandfat her] consented to the jurisdiction of the court. He is a full participant to the terms of this settlement agreem ent.” In its findings of fact and conclusions of law, the family court found that grandfather “shoul d be and is hereby made a party to this action with the same rights, responsibilities, and oblig ations 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 Sept ember 1994 and May 1996. Father’s wife testified that she and father discussed separating in November 1996 a nd 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.- 3 - reflected that the parties had ente red 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 custodia l parent of [the child] until her death with liberal visitation accord ed [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 th e minor child and [father] as is set forth in the attached agreement. The family court judge also made and include d 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. Furthe rmore, counsel for the parties represented that the Agreement had been negotiated over a period of several days with each party ha ving an opportunity to review the Agreement with his or her counsel prior to . . . signing it . . . . The family court judge dismissed with prej udice mother’s action to terminate father’s parental rights, finding that all parties freely and vol untarily 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 Domest ic Relations District Court, th e first of several motions and

2 The one-page agreement, which the court in corporated into its order, provided, in pertinent part, for “[j]oint custody between [grandf ather] and [father], with [the child’s] primary residence with [grandfather] in Virginia and [fath er] 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 gr ief 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 th is Agreement.” Under the agreement, “[e]ach party shall have the right to seek relief in th e 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.”- 4 - petitions seeking court interv ention in the visitation and cu stody dispute between him and grandfather. At that time, the child wa s 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 de termination 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 c ould be held, grandfather filed a petition in the Fairfax juvenile court seeking primary physic al and sole legal custody of the child. In response to the parties’ petitions, the juve nile court entered a consent order on June 9, 2003, 3 declaring that father and grandfather “repre sented that they have reached an agreement related to the custody and visitation of [the child].” Finding that th e order is in the child’s best interests, the juvenile court decr eed that father and grandfather “s hall retain joint legal custody of the minor child, with physical custody and th e primary physical residence of [the child] remaining with [grandfather].” The order outlined the responsibili ties 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 communi cate 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 j uvenile court conducted several status hearings, supervised the partie s, addressed the many issues raised by the parties regarding visitation with the child, and di rected communications between the parties and the experts who were to provide assistance to the juven ile court in making its determinations.- 5 - and considered extensive testimonial and documen tary evidence, including transcripts, reports, evaluations, and depositions, it ente red 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 ol der. 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 Ca rolina 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. Notabl y, 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 al lowing 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 le gal custodial arrangements. It identified the following factors as bearing signi ficantly 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, th us domesticating the order with its incorporated agreement.- 6 - relationship that the child had de veloped with father, his wife, a nd family; the failures associated with the implementation of the South Ca rolina order and agreement as set forth, supra ; the several frustrated attempts by fa ther to have visitation with the child; and the child’s continuing inability to “change [her] attachment from the gr andfather to her father.” The trial court found that the latter problem was cau sed, in part, by the “continuing effect on the grandfather of [mother’s] death” and the circumstances in gran dfather’s household which “in some ways . . . prevented [the child] from moving on.” The tria l judge further found that grandfather “has not actively supported the c ontact and relationship w ith [father] as [well as] he could have.” That said, the trial judge determined that, wh ile father had an unders tanding of the child’s needs, grandfather’s understanding of those need s 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 warra nt a modification of th e 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 conc lusion 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 pl ateau 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 understandi ng of her needs at this point and should have . . . an equal input into what occurs.- 7 - 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 co mmitted reversible error in refusing to grant him sole legal custody. His princi pal 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 Ca rolina order and agreement in determining the standard of review. As a result, he contends th e trial court erroneously deprived him of certain rights guaranteed to him as a parent under the United States Constitution 6 and disregarded the legal standard establishe d in Troxel v. Granville , 530 U.S. 57 (2000). Fath er also contends that the evidence does not suppor t the trial court’s denial of his petition for sole legal custody. In his appeal, grandfather challenges the awar d of primary physical custody to the father on the ground the evidence is insufficient to support the d ecision. He also challenges the propriety of certain evidentiary ru lings, 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 th e trial court’s decision awarding grandfather joint legal custody

6 Although father also argued in his brief a vi olation of Virginia’s Constitution, he failed to demonstrate that he made that argument below. The record s hows that father objected to the trial court’s order solely “on the basis of his fundamental lib erty 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 “c onstitutionally 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).- 8 - “in a decree separate from the South Carolina Or der contravenes the Fath er’s constitutionally protected fundamental liberty in terest under the Fourteenth Amen dment to the Constitution of

the United States to raise his da ughter without interference from a th ird 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 fath er’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 discu ssed a parent’s cons titutional right in the context of a dispute between the child’s parents and a th ird party, namely, the child’s grandparents. A Washington stat ute, which provided that “‘[a ]ny person may petition the court for visitation rights at any tim e,’” was at issue. Troxel , 530 U.S. at 61. It authorized the court to “order visitation rights for any person when visi tation 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 su icide, Granville sought to limit visitation for the paternal grandpar ents, Jenifer and Gary Troxel. Id. at 60-61. The trial court granted the Troxels’ petition for visitation pu rsuant to the Washington visitation statute.

Id. at 61. On appeal, the Washington Supreme C ourt found the statute facially unconstitutional, effectively striking it down. Id. at 63.- 9 - Discussing the propriety of gove rnmental intrusions into th e parent-child relationship, Justice O’Connor, writing for a plurality of four ju stices, underscored the hi storical roots of the fundamental principles at issue. See id. at 65-66. The Court recogni zed that “the interest of parents in the care, custody, a nd control of their children – is perhaps the oldest of the fundamental liberty interests r ecognized by this Court.” Id. at 65, 66 (citing prior United States Supreme Court precedent recogn izing the fundamental right of parents to make decisions concerning the care, custody, and control of their children). It also al lied 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, Justic e 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 grandpare nts a presumption in their favor and “directly contravened the traditional presumption that a fit pa rent will act in the best interest of his or her

child.” Id. at 69. A presumption favoring the grandpare nt’s right to visita tion failed to protect the parent’s fundamental constitu tional 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 presumpti on of validity or any weight whatsoever. Instead, the Wa shington 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 presum ption in favor of the grandfather, the state by its statute “forc[ed] parents to accede to c ourt-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.- 10 - 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 custodi al 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 cons titutional 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 th e task of developing the law to be applied in resolving child custody and visitation dis putes between a parent and third party. 8 That said, the overarching analytical principl e that derives from Troxel and its progeny can be identified as focused on the need to determine and apply th e correct burden of pr oof 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), th e Virginia Supreme Court had earlier examined and reaffirmed a parent’s f undamental right to care for and make decisions regarding his or her child. Ther e, the paternal grandparents f iled a petition pursuant to Code § 20-124.2(B) seeking visitation with their granddaughter after th e 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 th e presumption in favor of a fit parent’s decision or (2) avoiding th e 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”).- 11 - refused to allow them further visitation with the child. The child’s parents lived together, and no allegations of parental unfitness we re 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 agai nst 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 thei r right to autonomy in child re aring and, hence, violates the

Fourteenth Amendment to the United States Constitution.” Id. On appeal to this Court, we recognized that “the right of the pa rents in raising their children is a fundamental righ t 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 we lfare 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 ch ild’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 intere sts of the child” over the united objection of the child’s parents wi thout violating the constitutional rights of those parents. In this regard, the parents’ constitutional rights take precedence over the “b est interests” of the child.- 12 - Id. We reversed and remanded for the trial cour t to give proper deference to the parental presumption. 9

C. Griffin v. Griffin Two years ago, we deci ded Griffin v. Griffin , 41 Va. App. 77, 581 S.E.2d 899 (2003). There, Andrea Griffin, wife of El bert Griffin, conceived and gave birth to a child while they were separated. Id. at 79-80, 581 S.E.2d at 900. Husband beli eved 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 wa s not the child’s father. Id. Upon learning th e 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 di d not request that husband obtain visitation. Id. The trial court held for husband, “s tating that the ‘b est interests’ of the ch ild would be served by ordering visitation over the mother’s objection and that not doing so woul d 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 a pply ‘the “best interests” stan dard 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 de cision and likewise reversed the trial court decision; however, it decided to dismiss the pro ceeding 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.- 13 - together,” and “treated the actual- harm requirement as simply a restatement of the best-interests test”). II. Analysis As these decisions make manifest, while pare ntal rights have long been recognized under the common law, historically, gran dparents have not enjoyed simila r preferential treatment. See

Troxel , 530 U.S. at 96-97 (Kennedy, J. dissenting) (generally, “contemporary state-court decisions acknowledge that ‘[h]istorically, grandparen ts had no legal right of visitation,’ and it is safe to assume other third parties woul d have fared no better in court”); see also Linder v.

Linder , 72 S.W.3d 841, 855 (Ark. 2002) (“[G]randparental visitation has no hist oric roots in the common law but rather is a legislat ed creature of the late twentieth century”; listing other state cases stating the same fact.). Therefore, grandpar ents 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 cons idered persons with a legitimate interest). However, it surely does not follow that ri ghts 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 act or, such as a grandparent, is acting and will

continue to act in accordance with the best interests of the child a nd that the non-parental party is a proper custodian. Were that not the case, a doptive parents, relatives , and other non-parental third parties, including the stat e, 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 involve d situations in which a non-parent with no custodial rights requested visita tion against the wishes of parent s whose constitutional right to child-rearing autonomy had not been in the least altered. Troxel did not address the factual- 14 - circumstance that confronted the trial c ourt here. Moreover, to apply the Troxel parental presumption in this case, where grandfather shar ed joint legal custody with the father and had sole or primary physical custody, not only disregards the factual dis tinctions that exist, but also renders the principle of custody and th e 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 pr inciples 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 grandmothe r until the mother died in 1971. Id. at 313-14, 227 S.E.2d

at 742. The children’s father “who lived elsewher e, had failed to support the children until he was required to pay [child support] by a court orde r 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 he aring 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 ta ken 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 c ourt 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 wh ere both parents retain joint responsibility for the care and control of the ch ild 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 re sponsibility for the care and control of a child and has primary authority to make d ecisions concerning the child.” Id. See also Code § 16.1-228 (defining “‘Legal custody’” as, inter alia , “a legal status crea ted 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 biol ogical parent of [the child].”- 15 - “ruled the grandmother had the burden of pr oving by clear and convinc ing 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 th e trial court as cribed 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, afte r a hearing at which the father was present, made an unappealed adjudication that custody should be assumed by the Court to the excl usion of the father. This order was a determination by a court of competent jurisdiction of the custody question on its merits base d 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 presump tion 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 we lfare 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 invol ving a custody dispute between the natural mother and paternal relatives who we re seeking to adopt the child. In Watson , the

mother had executed a notarized statement which st ated, “‘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 vi able 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. Af ter hearing evidence, including testimony from a juvenile court officer that the mo ther said “‘she expected to try to regain the custody when she settled down,’” the juvenile co urt entered an order awarding the Shepards custody and granting the parent s reasonable visitation. Id. at 540-41, 229 S.E.2d at 899. Two years later, the mother petitioned to regain cust ody of her child. At th e 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 Sh epards’ 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 reliev ed 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 relinquish ment of custody, as evidenced by a written statement executed by her, upon results of a thorough investigation, and upon a heari ng 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 fore going order that it would be in [the child’s] best interests to trans fer custody to her; the burden- 17 - 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 reachi ng 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 in terests, the father agreed that the child’s best interests were served by placing custody in grandf ather. He also implicitly and necessarily agreed that grandfather, as custodian, was acti ng 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 gr andparent. In cases that fall beyond the parameters of Troxel factually, we have reason ed that a different burd en 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 lega l 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 cu stody, however, the father requested “reasonable visitation” for him and the pa ternal 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 aw ard, explaining that the Williams standard does not apply when one parent objects to visitation and the other pa rent requests it. Id. at 639, 513 S.E.2d at 903. Subsequently, in Y opp v. Hodges , 43 Va. App. 427, 598 S.E.2d 760 (2004), the mother of a child denied the maternal grandparents visitation with th e 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 “expressl y requested that the maternal gr andparents be given visitation rights.” Id. at 432, 598 S.E.2d at 762. The trial court f ound 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 par ticipating in pare ntal decision making. Yopp , 43 Va. App. at 438, 598 S.E.2d at 765.- 18 - interests. The subsequent cour t order confirmed that factual c onclusion. Thus, while grandfather

is not accorded a constitu tionally-derived legal presumption that he will act in the best interest of the child and is thus a proper custodian, he was ve sted with custodial status and all its attendant legal attributes by the father’s agreem ent embodied in two court orders. See Lindsay v. Lindsay , 218 Va. 599, 602-04, 238 S.E.2d 817, 819 (1977) (consen t 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, acco rding grandfather the status of custodian gave him precisely the same child -rearing autonomy as that enjoye d by a parent. As the child’s legal custodian, grandfather was ve sted 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 lega l and/or physical custody placed in a non-parent is subject to diminished protection under the law, simply becau se 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 cour t of competent jurisdic tion made a judicial

determination reflected in va lid 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 Fa irfax approved the agreement. See Albert , 45 Va. App. at 807-08, 613 S.E.2d at 869 (discussing binding nature of valid consent decree).- 19 - We conclude that the trial court properly app lied 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 parent s in a dispute with non-parents, . . . it follows that the best interests test is appropriatel y applied in resolving the cust ody dispute between father and grandparent.” McEntire , 217 Va. at 316, 227 S.E.2d at 743 15 ; 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. Desp ite the Supreme Court’s clear and broad articulation of the constitutional rights at i ssue in such dispute, the opinion in Troxel is limited in nature. The plurality rested its “decision on th e 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 c onsidered when the court is faced with a custody dispute between a grandparent and a parent, both of whom have custod ial rights. Thus, the results are the same, whether we denominate fathe r’s agreement, as embodied in the court orders, to be a relinquishment of at least some of the constitutional rights enunciated by Troxel 16 as the trial court did, or whether we simply find that his agreement, as incorp orated into two court orders, factually and, as a matter of law, establishe d an equality of interests and rights as between

15 Although McEntire was a pre-Troxel case, we find it still vi able 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 join t 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 hi s “relinquishment of his protec ted constitutional right [which] occurred when he consented to joint legal custod y.” Thus, father only agreed to and, according to the trial court, waiv ed joint legal custody and primary physical custody.- 20 - father and grandfather, analogous to the equa lity 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 initia l custody determination was not at issue before the court. Rather, the parties requested a modifica tion of a preexisting custody order. “A trial court, in determining whether a change of custody should be made, must apply a two-pronge d test: (1) whether there has been a [material] change in ci rcumstances 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 wi ll 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 circ umstances has been established, a trial judge, in determining the best interests of a child, may properly consider the factors se t 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 addi tion, the statute further instructs that the court “sha ll give primary consideration to the welfare of the child or children.” Id. The use of these factors clearly satisfies the requ irement 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 consente d 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 grandfat her, 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 di vests grandfather of that right by finding that it no longer is in the best interests of the child to remain within his custody. Indee d, that latter resolution of the issue is precisely what occurred in this case wh en the court determined that physical custody in the grandfather, as established by the South Carolina order, shoul d terminate and be awarded to father.- 21 - Father agreed to be bound by the South Caro lina order, which reflected the mother’s desire for the grandfather to ac t as the child’s custodian until father established a more sound relationship with the child. The agreement was pr epared in contemplatio n of her death. Thus, her passing was not a sudden, unpla nned event, which they could not have anticipated. The South Carolina family court entered a seven-page custody order after hear ing testimony from the parties, reviewing the record in the case, and ev aluating the agreement. The parties requested the family court to approve the agreement and inco rporate it into the fina l order along with other

related matters. In its concl uding paragraph, the family court j udge “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 contem pt powers of this Court.” The fact that a valid order was entered in South Carolina, registered and filed in Fairfa x, after which father agreed to the entry of a subsequent cons ent order reiterating gr andfather’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 orde r supersedes it.” Johnson v. Johnson , 26 Va. App. 135, 146, 493 S.E.2d 668, 673 (1997). Because the matter on appeal from the circ uit 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 orde r 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 visi tation petition filed by a non-parent, but “an attempt on the part of the na tural parent to terminate custody granted to a [non-parent] pursuant to a fi nal valid consent decree”).- 22 - We, therefore, find no error or abuse of discreti on 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 viol ated any constitutional right enj oyed by father in this case.

GRANDFATHER’S ARGUMENTS Finally, we turn to grandfathe r’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 th e 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 unle ss 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 prevai ling party, granting that pa rty 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 eviden ce 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 tr ier of fact and its decisi on 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 interest s 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 tr ial court improperly adm itted 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 e ffectively cross-examining these witnesses.” 18 Rule 4:12(a) allows “[a] party, upon reasonabl e 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 “f ailure to comply with [such an] order.” The record shows that grandfat her filed a motion to compel on November 7, 2003, however, the motion did not include requests for info rmation 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 tr ial court was not required to apply any sanctions pursuant to Rule 4:12(b). Moreover, the record shows that father disclosed his witnesse s, 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 refusi ng to exclude the evidence.

Grandfather’s contention that ev idence of the father’s marita l 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 Tencer s refused to answer deposition que stions 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 counsel ors 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 di scovery complaint, the record fails to show he filed a motion to compel pursuant to Rule 4:12(a). Ab sent 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 informa tion 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 a bout the stability of thei r marriage. The trial court’s ruling regarding the mental health professi onals is not before us, so we decline to address grandfather’s argument on that issue. Moreover, th e record shows that gra ndfather received a list of witnesses and had an opportunity to timely de pose or move to compel discovery of them regarding the Tencers’ marital st ability, but did not do so. Finall y, 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.