COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker and Annunziata 

Argued at Alexandria, Virginia 

DONNA M. PIATT 

 OPINION BY 

v. Record No. 0410-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MAY 26, 1998 

JOHN PIATT 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

William G. Plummer, Judge Designate 

 Cheryl K. Brunner (Cheryl K. Brunner, P.C., 

on briefs), for appellant. 

 Timothy T. Szabo (Szabo, Zelnick & Erickson, 

P.C., on brief), for appellee. 

 Amicus Curiae: National Center for Lesbian 

Rights (Kathryn D. Kendell; Shannon Minter; 

Robert F. Suarez, on brief), for appellant. 

 Donna M. Piatt (wife) appeals the trial court's order 

granting joint custody of the parties' child but awarding John 

Piatt (husband) primary physical custody. Wife contends the 

trial court erroneously: (1) treated her post-separation sexual 

conduct differently from husband's post-separation sexual 

conduct; (2) failed to make findings regarding the statutory 

factors relating to child custody;1

 (3) ruled on the 

admissibility of certain evidence; and (4) employed a conclusive 

 

 1In her brief, wife attempts to enlarge the issues on appeal 

to encompass a claim that the evidence was insufficient to 

support the court's ruling. We limit our review to the questions 

presented by wife. See Carbaugh v. Solem, 225 Va. 310, 312 & 

n.*, 302 S.E.2d 33, 34 & n.* (1983). This Court, as well as the 

opposing party, must be able to rely on a party's statement of 

the questions presented. See, e.g., Rule 5A:25(d). 
 2 

presumption that homosexual parents are harmful to their 

children. For the following reasons, we affirm. 

 I. 

 Under familiar principles, we view the evidence in the light 

most favorable to husband, the party prevailing below. See

Wilson v. Wilson, 12 Va. App. 1251, 1254, 408 S.E.2d 576, 578 

(1991). Wife and husband were married in July 1989, and their 

child was born on January 13, 1993. Both parents worked, and 

child care was provided by Tara Angyal, who is a professional 

child care provider and a friend of wife's, Sharon Piatt, who is 

husband's sister-in-law, and both grandmothers. In December 

1994, the parties separated while remaining in the marital 

domicile and entered into a settlement agreement under which they 

cared for the child on alternate weekdays and weekends. During 

this time, while husband was at work, his mother or Sharon Piatt 

often supervised the child and her slightly older female cousin. 

 On wife's days with the child, child care was provided by Tara 

Angyal and wife's mother while wife worked. After wife vacated 

the marital residence in June 1996, the child spent alternate 

weeks with her parents, an arrangement both parties agree was 

unsatisfactory. 

 The parties' settlement agreement also provided that a 

custody evaluation would be performed by Dr. Christopher D. Lane. 

 In his report, Dr. Lane recommended that the parties share joint 

legal custody and that wife have primary physical custody with 
 3 

liberal visitation for husband. Dr. Lane based his 

recommendation in part on "the assessment of [wife's] parenting 

abilities as being demonstrably broader in scope at this time 

than those of Mr. Piatt and in the perceived greater 

responsiveness of [the child] to her." Dr. Lane also testified 

that his assessment of both parties' parenting skills and 

commitment to parenting "would be consistent with a high level of 

devotion to the care of [the] child." 

 At trial, both parents presented evidence concerning their 

post-separation relationships with third parties. The evidence 

established that husband had been involved in one heterosexual 

relationship and wife had participated in two homosexual 

relationships following the parties' separation. Husband and his 

female friend testified that their involvement was serious, and 

they planned marriage with the full support of husband's family. 

 Wife acknowledged that she was "experimenting" and still dealing 

with the issue of her sexual orientation, and that as a result, 

her relationship with her father had been damaged. 

 Dr. Lane filed a supplemental report in which he reviewed 

several studies on the effects of homosexuality on children. He 

testified that "[t]here seems to be no credible documentation of 

damage to children" from being raised by a homosexual parent. 

Dr. Lane also indicated that wife "is still struggling with her 

own sexual identity," and her "family is reverberating" from her 

"very angry estrangement from her father." 
 4 

 The trial court ruled from the bench, finding that wife "is 

still in a turmoil, which is continuing and has continued over 

the last two years. This turmoil is as to her sexual orientation 

and how her life should go forward." The court agreed with 

Dr. Lane that "both parents have good parenting skills. They 

both love their daughter, and their daughter loves both of them." 

 However, the trial court expressed doubt about the credibility 

of wife's testimony and concluded: 

 I have to balance these things out. And 

there is no easy answer, but I believe that 

the father is better qualified at this point 

to be the primary caretaker of the child. I 

believe there is more stability in his 

surroundings and in his home. There is 

support on both sides of the family, but 

there is probably a little bit more support 

on the side of the father. . . . 

 I am going to make it joint custody, 

because I do not want anybody to think that 

they do not have a say in raising the child. 

 The primary custodian will be the father. 

The trial court awarded joint legal custody of the child, with 

husband having primary physical custody and wife having ten days 

per month visitation plus vacations and alternate holidays. 

II. Post-Separation Sexual Conduct 

 Wife contends the trial court erred in treating her two 

post-separation relationships as having an adverse effect upon 

the child, but not so treating husband's relationship. However, 

the record discloses no finding that either party's 

post-separation sexual behavior had an adverse effect upon the 

child. Rather, the trial court treated the parties' 
 5 

post-separation sexual behavior as evidence supporting its 

conclusion that husband provided a more stable home environment 

for the child. Consequently, wife's contention is without merit. 

 In determining child custody, a trial court is required to 

"give primary consideration to the best interests of the child." 

 Code § 20-142.2(B). Because the trial court heard the evidence 

at an ore tenus hearing, its decision "is entitled to great 

weight and will not be disturbed unless plainly wrong or without 

evidence to support it." Venable v. Venable, 2 Va. App. 178, 

186, 342 S.E.2d 646, 651 (1986). 

 In general, a court examines the sexual conduct of a parent 

to determine whether it has had any adverse impact on the child.2

See Brown v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977) 

("in determining the best interest of the child, the court must 

decide by considering all the facts, including what effect a 

nonmarital relationship by a parent has on the child"). Here 

both parents' relationships were facts for the trial court to 

consider, but the record does not reflect that those 

relationships provided the basis for the custody award. 

 The trial court referred to wife's post-separation sexual 

 

 2This standard applies to both heterosexual and homosexual 

conduct. See, e.g., Ford v. Ford, 14 Va. App. 551, 555, 419 

S.E.2d 415, 418 (1992) (upholding custody award to homosexual 

parent because the child was not exposed to the "illicit nature" 

of the relationship); Sutherland v. Sutherland, 14 Va. App. 42, 

414 S.E.2d 617 (1992) (upholding custody award to heterosexual 

parent because the evidence did not show that the parent's sexual 

conduct had an adverse effect on the children). 
 6 

relationships and her "experimentation" not as having a direct 

negative impact on the child, but as manifestations of wife's 

inner "turmoil" and "lack of control." These characteristics 

have a direct bearing on wife's ability to provide a stable home 

environment and to "meet the emotional, intellectual and physical 

needs of the child." Code § 20-124.3(3). See Bostick v. 

Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319 (1996) (the 

degree of stability of the home environment is a matter of 

concern under Code § 20-124.3(3)). 

 The evidence supports the trial court's conclusion that 

wife's home environment was less stable than husband's. The 

record demonstrates that wife often left the child in the care of 

others while she pursued recreational trips and activities. She 

occasionally took the child with her without regard to the 

child's bedtime or evening routine. Wife was unsure whether she 

would remain in her condo after the one-year lease ended. She 

dated several individuals and admitted to two sexual 

relationships. Furthermore, wife's family relationships were 

strained. 

 The court contrasted the stability of wife's home 

environment with that provided by husband. The evidence shows 

that husband developed a routine for the child. He maintained 

his residence in the marital home, where the child had lived her 

entire life. He was involved in a long-term relationship with 

another woman and was planning for marriage. He had the full 
 7 

support of his parents and his brother and sister-in-law. His 

relatives provided day care for the child and her young cousin. 

 All of these facts led the trial court to conclude that, 

while it was clear that neither parent was unfit, husband could 

provide a more stable environment for the child. The trial court 

recognized the commitment of both parents to the child by 

ordering joint custody, and the physical custody arrangement 

provided wife with liberal visitation. The parties acknowledged 

that their previous shared custody arrangement failed. Credible 

evidence supports the trial court's award of joint custody with 

primary placement of the child with husband.3

 III. Consideration of Factors in Code § 20-124.3 

 In its final order, the trial court stated that it had 

"considered each and every factor under § 20-124.3 of the Code of 

Virginia, 1950, as amended." Wife contends the trial court 

erroneously failed to make findings of fact with regard to each 

of the statutory factors. 

 In determining the best interests of the child, a court must 

consider all of the factors set out in Code § 20-124.3. Sargent 

v. Sargent, 20 Va. App. 694, 701, 460 S.E.2d 596, 599 (1995). It 

 

 3Wife also contends that the court's disparate treatment of 

the parties' sexual conduct in the absence of evidence of an 

adverse effect of that conduct gives rise to an inference of an 

unconstitutional "conclusive presumption that homosexual parents 

are harmful to their children." In light of our holding that the 

trial court made no finding of adverse impact and examined the 

parties' sexual behavior only as it related to the stability of 

their homes, wife's contention is not supported by the record. 
 8 

is well established that failure to consider all of the factors 

is reversible error. See, e.g., Robinson v. Robinson, 5 Va. App. 

222, 227, 361 S.E.2d 356, 358 (1987). A trial court need not, 

however, "'quantify or elaborate exactly what weight or 

consideration it has given to each of the statutory factors.'" 

Sargent, 20 Va. App. at 702, 460 S.E.2d at 599 (quoting Woolley 

v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 442, 426 (1986)). We 

find no merit to wife's claim that the trial court must make 

specific findings as to each statutory factor. 

 Wife also claims the court failed to consider the "age and 

physical and mental condition of each parent" as required by Code 

§ 20-124.3(2) by failing to give weight to Dr. Lane's report. 

Wife's argument to the contrary, a trial court is not required to 

accept the opinion of an expert. See McLane v. Commonwealth, 202 

Va. 197, 205-06, 116 S.E.2d 274, 281 (1960). "It is well 

established that the trier of fact ascertains [an expert] 

witness' credibility, determines the weight to be given to their 

testimony, and has the discretion to accept or reject any of the 

witness' testimony." Street v. Street, 25 Va. App. 380, 387, 488 

S.E.2d 665, 668 (1997) (en banc) (citing Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986)). 

Thus, the trial court acted within its discretion when it 

declined to follow Dr. Lane's recommendation. 

IV. Evidentiary Issues 

 Wife contends the court erred in making a number of 
 9 

evidentiary rulings. Given its responsibility to manage often 

complex and hotly contested litigation, a trial court has broad 

discretion to determine the admissibility of evidence. See

Langhorne v. Commonwealth, 13 Va. App. 97, 106, 409 S.E.2d 476, 

482 (1991) (citing Blain v. Commonwealth, 7 Va. App. 10, 16, 371 

S.E.2d 838, 842 (1988)). 

 Wife argues the trial court arbitrarily excluded evidence 

relevant to the factors outlined in Code § 20-124.3. Some of the 

evidence to which wife refers was, in fact, not excluded. The 

other evidence was excluded as irrelevant, too abstract, or 

argumentative. "Evidence having rational probative value and 

which adds force and effect to other evidence will be admitted 

unless some other rule requires its exclusion." Peacock Buick v. 

Durkin, 221 Va. 1133, 1136, 277 S.E.2d 225, 227 (1981) (citing 

Levine v. Lynchburg, 156 Va. 1007, 1014, 159 S.E. 95, 97 (1931)). 

 After reviewing the excluded evidence, we conclude the trial 

court properly exercised its discretion to exclude evidence which 

it considered too far afield from the issues confronting the 

court. 

 Wife claims the court's evidentiary rulings were tied to the 

sexual orientation of the party offering the evidence or asking 

the question. A litigant is denied due process if his or her 

case is heard before a judge who harbors "'such bias or prejudice 

as would deny [the litigant] a fair trial.'" Welsh v. 

Commonwealth, 14 Va. App. 300, 314, 416 S.E.2d 451, 459 (1992) 
 10 

(quoting Justus v. Commonwealth, 222 Va. 667, 673, 283 S.E.2d 

905, 908 (1981)), aff'd, 246 Va. 337, 437 S.E.2d 914 (1993). The 

trial judge made no statement that his rulings were based on 

anything other than the rules of evidence. The fact that the 

trial court made a number of evidentiary rulings adverse to wife, 

without more, does not indicate the trial judge was biased 

against her. See Stevens v. Commonwealth, 8 Va. App. 117, 123, 

379 S.E.2d 469, 473 (1989) (finding no bias despite the fact that 

the defendant lost 36 of 38 objections). The trial court's 

evidentiary rulings were a proper exercise of its discretion and 

showed no bias against wife. 

 Wife also argues the court erred in admitting a greeting 

card as evidence, as well as in reading the card to determine 

whether it contained hearsay. After husband attempted to 

introduce the card, wife objected on the basis that the contents 

of the card were hearsay. The court ruled, "If you are offering 

it for the contents of the truthfulness of it, sustained." The 

premise of wife's argument is incorrect. As the court's 

statement makes plain, the trial court did not admit the card, 

but ruled it inadmissible. 

 Wife's argument that the trial court erred by reading the 

card also fails. First, the court had to read the card to rule 

on its admissibility. Second, the trial court is presumed to 

have excluded inadmissible evidence from its consideration, and 

wife has offered nothing to rebut this presumption. See Adams v. 
 11 

Adams, 233 Va. 422, 429, 357 S.E.2d 491, 495 (1987) (citing 

Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 

(1981)). The trial court properly exercised its discretion in 

ruling on the admissibility of the card. 

 For the foregoing reasons, we affirm. 

 Affirmed.
 12 

 

Annunziata, J., dissenting. 

 In my opinion, the trial judge's statements make clear that, 

in awarding husband primary physical custody, he applied 

different standards when evaluating the parties' post-separation 

sexual conduct. Accordingly, I respectfully dissent.4

 Viewed in the light most favorable to husband, the record 

shows that, during the period between the parties' separation in 

December 1994 and the hearing in September 1996, husband was 

involved in a relationship with one woman. Husband's 

relationship began in October 1995, and continued through the 

time of the hearing. Wife was involved in a relationship with a 

woman from January 1995 to May 1995, and in a relationship with 

another woman from May 1995 through the time of the hearing in 

September 1996. 

 The trial judge's decision began with his statement that 

wife was in a "turmoil" over her sexual orientation. Immediately 

following this statement, the judge assessed wife's sexual 

orientation and conduct: 

 She admits that she is experimenting 

. . . . Within her homosexual side of this 

 4The issue before us does not raise a question of the 

sufficiency of the evidence in support of the court's custody 

award, as is suggested by the majority. This issue was not 

raised by either party. Instead, wife has limited her claim to 

"[w]hether the trial court erred when it did not consider the 

evidence of [husband's] post-separation adulterous relationship 

in the same light as it considered [wife's] post-separation 

adulterous relationship." While some review of the evidence is 

necessary to understand the trial court's reasoning, a 

sufficiency analysis ultimately does not answer the legal 

question which is before us. 
 13 

experiment and turmoil, she has had two 

admitted lovers in the last eighteen months; 

one for four months, and one for over a year. 

 Speaking of it in the simplest manner, 

and not so much whether it is homosexual or 

heterosexual, this is promiscuity while still 

married. It shows a level of lack of 

control. 

* * * * * * * 

 I think Dr. Lane was correct in saying 

that both parents have good parenting skills. 

 They both love their daughter, and their 

daughter loves both of them. 

 

 The judge then addressed husband's conduct: 

 On the other side, there is no evidence 

that Mr. Piatt has had any involvement in 

promiscuity, nor is there any evidence that 

he has any lack of parenting skills. He 

scored just about the same score she did on 

that grounds. There is no question that he 

has great love and care for his daughter, as 

does the mother. The mother clearly loves 

her daughter. 

 At this point, the judge made the statements quoted by the 

majority: 

 I have to balance these things out. And 

there is no easy answer, but I believe that 

father is better qualified at this point to 

be primary caretaker of the child. I believe 

there is more stability in his surroundings 

and in his home. There is support on both 

sides of the family, but there is probably a 

little bit more support on the side of the 

father. I guess they both have used -- Both 

parents have used the support of these 

families over the years to help them. 

The judge then awarded the parties joint legal custody and 

awarded husband primary physical custody. 

 The trial judge's statements make clear that the factor he 
 14 

believed he had to "balance . . . out" was the relative 

"promiscuity" of wife and husband; his lengthy discussion of the 

relative "promiscuity" of husband and wife provides the 

antecedent for the trial judge's finding that husband had more 

"stability" and makes clear that this finding meant more stable 

sexual behavior. 

 The evidence shows, as wife contends, that the trial court 

treated wife's sexual conduct differently from that of husband. 

First, the trial court's finding that wife had engaged in 

"promiscuity while still married," but that husband had not, is 

not supported by the evidence. XII The Oxford English Dictionary

613 (2d ed. 1989), defines "promiscuous" as "indiscriminate in 

sexual relations." Similarly, The Oxford Dictionary and 

Thesaurus 1196 (1996), defines "promiscuous" as "having frequent 

and diverse sexual relationships, esp. transient ones." Neither 

party's relationships could reasonably be described from the 

record as "indiscriminate," "frequent and diverse," or 

"transient." In fact, the relationship in which wife was 

involved at the time of the hearing had lasted five months longer 

than husband's relationship. Wife's first relationship ended 

before her second relationship began. The record contains no 

evidence of other sexual relationships by either party. The 

court's assignment of the label of "promiscuity" to wife's two 

serial, monogamous relationships, to distinguish her conduct from 

that of husband, is not supported by the evidence. 
 15 

 The other facet of the court's distinction between wife's 

two relationships and husband's relationship is that wife's 

alleged promiscuity took place "while still married." At the 

time of the hearing, however, both parties were still married. 

The court had not issued a decree of divorce. Furthermore, no 

evidence proved that either party had any extramarital 

relationship prior to their separation. Thus, the court's 

distinction between the parties on this basis has no foundation 

in the evidence. 

 Second, the trial court's consideration of evidence of 

wife's sexual conduct, relative to that of husband, as a factor 

weighing against awarding her primary physical custody was 

erroneous because the record contains no evidence of any effect 

on the child. To the extent a finding of adverse effect on the 

child is implicit in the court's decision, it is erroneous 

because no evidence of such an effect was introduced on this 

point. In Brown v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 

(1977), the Supreme Court of Virginia established the standard 

for consideration of sexual conduct of a parent in child custody 

decisions: 

 In all custody cases the controlling 

consideration is always the child's welfare 

and, in determining the best interests of the 

child, the court must decide by considering 

all the facts, including what effect a 

nonmarital relationship by a parent has on 

the child. The moral climate in which 

children are to be raised is an important 

consideration for the court in determining 

custody . . . . 
 16 

(Emphasis added). 

 As the majority concedes, this standard is applicable to 

both heterosexual and homosexual sexual conduct.5

 The relevant 

inquiry, therefore, is whether the evidence supports a finding as 

to the "'effect a nonmarital relationship by a parent has on the 

child.'" Brinkley v. Brinkley, 1 Va. App. 222, 224, 336 S.E.2d 

901, 901 (1985) (quoting Brown, 218 Va. at 199, 237 S.E.2d at 91) 

(emphasis omitted). 

 The record contains no evidence that wife's conduct, 

comprised of two same-sex relationships in eighteen months, had 

any effect on the parties' child. At the time of the hearing, 

the child was less than four years old, and neither party 

introduced evidence that the child was aware of wife's 

relationships. Husband testified that, to his knowledge, wife 

had never exposed the child to any intimate relationship with 

 

 5See, e.g., Bottoms v. Bottoms, 249 Va. 410, 420, 457 S.E.2d 

102, 108 (1995) (finding a lesbian mother unfit because "there is 

proof in this case that the child has been harmed, at this young 

age, by the conditions under which he lives when with the mother 

for any extended period"); Roe v. Roe, 228 Va. 722, 728, 324 

S.E.2d 691, 694 (1985) (changing custody under Brown standard 

from homosexual father to heterosexual mother because of "the 

impact of the father's conduct upon the child"); Doe v. Doe, 222 

Va. 736, 746, 284 S.E.2d 799, 805 (1981) (reversing the 

termination of a lesbian mother's parental rights because there 

was no evidence that the mother's sexual conduct was "detrimental 

to the child's welfare"); Ford v. Ford, 14 Va. App. 551, 555, 419 

S.E.2d 415, 418 (1992) (upholding custody award to cohabiting 

father because the child "was not exposed to the illicit nature 

of her father's relationship" with his partner); Sutherland v. 

Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992) 

(upholding custody award to adulterous mother because, unlike 

Brown, the evidence did not support "an adverse effect on at 

least one of the children"). 
 17 

another woman. Indeed, the evidence affirmatively proved that no 

displays of affection of a sexual nature took place between wife 

and her partner in front of the child, that wife's partner did 

not live at the wife's home, and that wife had no plans to have 

her partner live in the home at any time. While the evidence 

showed that wife was "struggling" with her sexual identity, no 

evidence proved that the wife's "struggle" affected her ability 

to parent the child. Indeed, the evidence is to the contrary. 

Not only did expert testimony establish that wife's parenting 

skills were "demonstrably broader in scope . . . than those of 

[husband]," the court found the wife's parenting skills were 

equal to those of the husband. The absence of evidence showing 

any effect of wife's sexual conduct on the child supports wife's 

contention that the trial judge applied different standards when 

evaluating the parties' post-separation sexual conduct. 

 Finally, even if, as the majority states, the trial court 

"treated the parties' post-separation sexual behavior [not as 

evidence of its adverse effect on the child but] as evidence 

supporting its conclusion that husband's home was a more stable 

environment for the child," I would reverse. To the extent the 

trial judge's conclusion about the greater stability of husband's 

"surroundings" and "home" was premised on the parties' sexual 

conduct, his conclusion is erroneous as having been based on the 

application of different standards relating to this factor. 

 For the reasons outlined above, I would reverse and remand 
 18 

for a redetermination of custody of the child. See Dooley v. 

Dooley, 222 Va. 240, 247, 278 S.E.2d 865, 869 (1981) ("In view of 

our conclusion that the charge of adultery has not been proven, 

we must reverse the judgment of the trial court and remand the 

case . . . for a redetermination of custody in light of our 

holding on the issue of adultery . . . ."); Williams v. Williams, 

24 Va. App. 778, 785, 485 S.E.2d 651, 654 (1997) ("Holding that 

Code § 20-124.2(B) requires a finding that harm or detriment to a 

child's health or welfare would result without visitation, before 

visitation can be ordered over the unified objection of the 

child's parents, we reverse and remand for reconsideration of 

visitation in accord with this opinion.").