COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Lemons∗

Argued at Richmond, Virginia 

LINDA CINTRON 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 2169-99-2 JUDGE DONALD W. LEMONS 

 JULY 5, 2000 

DAVID A. LONG 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Deanna D. Cook (Bremner, Janus & Cook, on 

brief), for appellant. 

 John N. Clifford (Clifford & Duke, on brief), 

for appellee. 

 ∗

 Justice Lemons prepared and the Court adopted the opinion 

in this case prior to his investiture as a Justice of the 

Supreme Court of Virginia. 

∗∗ Pursuant to Code § 17.1-413, recodifying Code 

§ 17-16.010, this opinion is not designated for publication. 

 Linda Cintron ("mother") appeals the September 9, 1999 

order of the Circuit Court of Chesterfield County granting David 

Long ("father") custody of their thirteen-year-old daughter 

("daughter"). On appeal, the mother contends that (1) the trial 

court's order changing custody of the daughter from the mother 

to the father is void for lack of subject matter jurisdiction; 

(2) if subject matter jurisdiction existed, the trial court 

abused its discretion in changing custody; and (3) the mother 

should be awarded attorney's fees and costs for this appeal. 
Mother presents three additional questions for review - one 

concerning failure to grant a motion to reconsider and two 

pertaining to visitation. Our opinion renders it unnecessary to 

address these three additional questions on appeal. Because the 

trial court abused its discretion by changing custody of the 

daughter from the mother to the father, we reverse that ruling 

and remand to the trial court. 

I. BACKGROUND

 The mother and the father were never married and never 

lived together. He is sixty-four years old, and she is 

thirty-eight years old. The daughter was born on May 13, 1986. 

She lived with the mother from birth until August 13, 1999. The 

father visited the daughter approximately twice a year until she 

was four years old, at which time he stopped visiting until 

after her ninth birthday in 1995 when he visited "a couple of 

times." There was no further contact until November of 1997 

when the father was given temporary visitation pursuant to his 

November 3, 1997 petition for visitation and custody. Dr. 

Leigh D. Hagan, a forensic and clinical psychologist, was 

appointed by the juvenile court to facilitate visitation. 

 On January 5, 1998, the father withdrew his petition for 

custody. From the Fall of 1997 until August 12, 1998, the 

father visited the daughter three times. His visitation rights 

were terminated in August of 1998 by the juvenile court. 

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 The father appealed to the circuit court and, at the March 

22, 1999 hearing, the judge began the proceedings noting "some 

additional observations, just from reviewing this file." He 

asked, "Why is a twelve year old controlling the issue of 

visitation?" He noted that while he was not going to force the 

daughter into a relationship with her dad that is "detrimental 

to her best interest," "I've got to ask myself why is a twelve 

year old controlling the issue of visitation. That's what my 

concern is." Prior to hearing testimony, the court stated, 

 I hate to put this focus on a twelve 

year old child. 

 * * * * * * * 

 I think it's almost criminal to do 

that. Now, unfortunately the statute says I 

have to do that, and I will. 

 But I tell you, I don't like it. I 

think it's wrong. I think it's empowerment 

to a twelve year old child who apparently 

has got too much power already. 

 Dr. Hagan testified that the mother was not supporting the 

daughter's re-introduction to the father, that the mother 

continued to exert great influence over the daughter and, 

therefore, the trial court should require visitation for the 

father and implement a specific schedule so that the daughter 

would be given the opportunity to form her own opinion of the 

father based on firsthand observations as opposed to the 

mother's negative feelings toward the father. Hagan stated that 

he had no reservation regarding the father's character, interest 

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or capacity to look after the daughter's interests and described 

him as "patient, courteous [and] respectful." Hagan 

characterized the opinion the mother articulated of the father 

as "about as low an opinion as I've heard expressed. It was 

bitter and hostile. All on the theory of errors of omission 

rather than commission." Hagan further described that encounter 

stating, "it's about as emotionally charged an atmosphere as 

I've ever had in my office in sixteen years." The trial court 

reinstated the father's visitation rights. 

 On May 19, 1999, the trial court held a show cause/review 

hearing based on failure to comply with the court-ordered 

visitation. The judge stated from the outset, "Let me be very 

clear about this. If the information I am to receive from [the 

daughter] is suggestive of the fact that Ms. Cintron has 

interfered with Mr. Long's ability to start a relationship with 

this child, I'm going to transfer custody today. That's the 

bottom line on this." 

 The evidence revealed that the daughter had, when she was 

six or seven years old, asked the mother to talk to the father 

to arrange visitation at least three times, all of which the 

mother refused. Further, the trial court found that the 

daughter's attitude had "vacillated 180 degrees since the last 

time she was [there]" when she told the judge that she had "no 

reservations whatsoever about seeing her dad, re-establishing a 

relationship with him, and spending time with him." The court 

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found her evasive in her answers and attributed the daughter's 

sudden refusal to cooperate with the visitation to the mother's 

efforts to undermine the establishment of any relationship 

between the father and the daughter. The judge noted that the 

mother could be held in contempt and then stated, "I'm going to 

put the parties back into visitation, and I'm going to tell 

them, point blank: If there are any other further violations of 

the order, somebody is going to jail." The court ordered a new 

schedule for visitation. 

 On June 14, 1999, in another show cause/review hearing, the 

evidence revealed that the daughter continued to refuse to visit 

with the father. Before the mother testified, the judge stated, 

"It's obvious we're being held hostage by a 13-year-old child, 

and I've got to ask myself who's the parent, and who's the 

child?" He went on to warn the mother, 

 I'm not going to be held hostage by a 

13-year-old child. Perhaps Ms. Cintron 

wants to allow herself to be held hostage by 

a 13-year-old child, and I'm assuming, for 

sake of this discussion, that Ms. Cintron is 

without blame in this. If she is without 

blame, then we've got a 13-year-old child 

that's calling the shots, over whom Ms. 

Cintron has no control. I'm not going to be 

held hostage. 

 * * * * * * * 

 This [c]ourt's orders are not going to 

be thwarted by Ms. Cintron's lack of 

parenting abilities to control a 13-year-old 

child. 

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The trial court found that the mother was doing nothing to 

encourage visitation, only paying the court's order "lip 

service" and was not sanctioning the daughter or implementing 

consequences for her disobedience. The trial court determined 

that the change in the child's attitude indicated either a lack 

of the mother's parental abilities or the mother's undue 

influence. The judge stated, "I'm not going to be held hostage 

by a 13-year-old girl. Ms. Cintron chooses to he held hostage 

by a 13-year-old girl. I'm not going to be. She's either going 

to go visit with her dad, or she's going to live with her dad. 

And you can tell her that. And that's the choice she’s got." 

The court noted that, "I'm just not playing a game with a 

13-year-old." Before a new visitation schedule was implemented, 

the court again stated, "I'm not going to play with a 

13-year-old, and I'm not going to be held hostage by her," "[the 

daughter]'s had the opportunity [to comply with the order] . . . 

[, a]nd quite frankly, she's been playing fast and loose with 

this, and I don't have the patience for it . . . as I've said 

repeatedly, I'm not going to be held hostage by a 13-year-old 

little girl[,] I'm not going to do it" and "I really don't have 

time to be playing a game with a 13-year-old little girl." 

 On August 13, 1999, the court again held a show 

cause/review hearing. The father testified that approximately 

95% of the visitation schedule had not been completed and that 

the daughter threatened to run away. Dr. Marie Brown, based on 

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her home visits and telephone conversations with the daughter, 

the mother and the father, testified that the mother had a 

"verbally abusive and physically confrontational episode with 

the father." Brown testified that she suspected the mother to 

have "issues about the visitation." The father was described as 

"respectful," "cooperative" and "pleasant." Brown recounted an 

episode where the daughter was verbally abusive to the father, 

calling him "a prick" and telling him to "go to hell." Brown 

stated that "in thirty years of clinical practice, [she had] 

never [seen] such flagrant disregard for the court system," that 

the court was "made into a mockery" and recommended giving 

custody to the father and that the daughter be sent to boarding 

school to figure out her identity. The evidence further 

revealed that during the visitations, the daughter would stay in 

her room and "pout." 

 Before talking with the daughter in chambers, the trial 

court judge noted that it "w[ould] be as fruitless as the last 

time" and went on to state, "We have a thirteen-year-old child 

who is calling the shots here." After meeting with the 

daughter, the court noted its observations, stating, "I am not 

going to be manipulated by a thirteen-year-old. She has 

manipulated Mom. She is trying to manipulate Dad. She has 

manipulated everyone with whom she has come into contact." The 

court noted, "I have no intentions of leaving that child with 

Ms. Cintron. I'm going to change custody. If the child wants 

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to run away, that's Mr. Long's problem. He's going to have to 

deal with that." 

 The trial court found that Dr. Brown's testimony was "a 

carbon copy" of what was heard from Dr. Hagan six months 

earlier, that it had doubts about the mother's parenting 

abilities and that it did not find the daughter's testimony 

credible. The mother was found to be in contempt. Custody was 

transferred to the father immediately, and the mother was 

instructed to pay the father child support in accordance with 

the guidelines. 

II. SUBJECT MATTER JURISDICTION

 Mother claims that the trial court's order of September 9, 

1999 granting the father custody of the daughter is void for 

lack of subject matter jurisdiction. Mother argues that since 

the trial court acquired jurisdiction solely by virtue of an 

appealed visitation petition, and father's custody petition was 

filed for the first time in the trial court after the appeal 

hearing, the trial court did not have original jurisdiction to 

entertain the custody petition filed for the first time in its 

court. According to appellant, Code § 16.1-241(A) vests the 

juvenile and domestic relations district court with exclusive 

original jurisdiction of all cases involving custody, visitation 

and support of minor children. 

 Code § 16.1-244, however, states that the jurisdiction 

granted to juvenile courts shall not "deprive any other court of 

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the concurrent jurisdiction . . . to determine the custody, 

guardianship, visitation or support of children when such 

custody, guardianship, visitation or support is incidental to 

determination of cause pending in such courts." Contrary to the 

mother's assertions, custody was incidental to visitation in 

this case and the circuit court had subject matter jurisdiction 

to transfer custody. 

III. CUSTODY

 When determining which custody arrangement is in the best 

interests of a child, the trial court is required to consider 

the evidence presented as it relates to the factors listed in 

Code § 20-124.3. The trial court is not required to quantify or 

elaborate what weight or consideration it has given to each of 

the factors enumerated in Code § 20-124.3 or to weigh each 

factor equally. See Sargent v. Sargent, 20 Va. App. 694, 702, 

460 S.E.2d 596, 599 (1995). The trial court's findings, 

however, must have some foundation based on the evidence in the 

record, and if the trial court's findings lack evidentiary 

support, its determination of child custody is an abuse of 

discretion. Cf. Trivett v. Trivett, 7 Va. App. 148, 153-54, 371 

S.E.2d 560, 563 (1988); Woolley v. Woolley, 3 Va. App. 337, 345, 

349 S.E.2d 422, 426 (1986). The trial court is vested with 

broad discretion to safeguard and promote the child's interests, 

and its decision will not be reversed unless plainly wrong or 

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without evidence to support it. See Farley v. Farley, 9 Va. 

App. 326, 327-28, 387 S.E.2d 794, 795 (1990). 

 This case implicates Code § 20-108 which states in 

pertinent part, "[t]he intentional withholding of visitation of 

a child from the other parent without just cause may constitute 

a material change in circumstances justifying a change of 

custody in the discretion of the court." This provision simply 

means that the first prong of the test articulated in Keel v. 

Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983), may be 

satisfied by a finding of intentional withholding of visitation. 

This provision does not mean that the second prong of the Keel

test dealing with "best interests of the child" has been removed 

from the court's consideration. See also Code § 20-124.3. 

 The mother argues that the trial court abused its 

discretion by changing custody of the daughter from her to the 

father. We agree. The trial judge explained his ruling as 

follows: 

I don't find that Ms. Cintron has in good 

faith tried to comply with the orders of 

this [c]ourt. I find she is in contempt of 

the orders of this [c]ourt, and I have 

serious questions about her individual 

parenting ability. I said this before and 

I'll say it again, she's either in willful 

violation of this order or she is being 

controlled by a thirteen-year-old girl. 

 I spoke with [the daughter], counsel 

each questioned [the daughter], and quite 

frankly, I don't put a great deal of 

credibility in anything that [the daughter] 

had to say. I think [the daughter] was 

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delivering a message, and I seriously doubt 

her ability to provide this [c]ourt with an 

informed judgment as to the status of her 

role in the relationship with Ms. Cintron 

and Mr. Long. 

 I'm tired of having this case come back 

and forth here. We have probably been in 

court once a month since March. I don't 

know what the answer to this is. I can't 

force a thirteen-year-old into a visitation, 

and I realize that. 

 I feel like I have no choice at this 

point than to allow Mr. Long to exercise his 

parenting abilities, to see if there is 

better control. I am transferring custody 

of this child to Mr. Long. 

After awarding custody to the father, the trial court stated, 

 Mr. Long, I don't know what you are 

going to do with this little girl. I really 

don't. She is out of control. She has been 

oppositional. She's been obviously 

indoctrinated for a long period of time that 

you haven't dealt with incarnate [sic]. 

 I don't know what the answer is. I 

would hope that you will rely on the advice 

of the professionals who might be in a 

better position to give you the guidance 

that you need, because I can give you no 

guidance. 

 The trial court's stated reason for the decision and our 

review of the evidence in the record reveal that noncompliance 

with the court's orders rather than consideration of the factors 

in Code § 20-124.3 served as the basis for the court's transfer 

of custody. Our review of the record demonstrates that the 

trial court, amidst its frustration with the daughter's 

consistent failure to comply with the court-ordered visitation 

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schedule and the mother's failure to sanction the daughter for 

such disobedience, responded by removing the child from the 

mother, her custodian since birth, and placing the 

thirteen-year-old girl with her sixty-four-year-old father who 

was a virtual stranger to her and with whom she hardly had the 

semblance of a relationship. 

 Although we are sympathetic to the frustration of the trial 

court in dealing with this difficult situation, "[i]n matters 

concerning custody and visitation, the welfare and best 

interests of the child are the 'primary, paramount, and 

controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App. 

595, 596, 405 S.E.2d 441, 442 (1991) (quoting Mullen v. Mullen, 

188 Va. 259, 269, 49 S.E.2d 349, 354 (1948)). Our Supreme Court 

has noted that "[o]ur first and foremost concern here, as in all 

child custody cases, is the welfare of the child. All other 

matters, including the misconduct of the [mother] in violating 

court orders, must necessarily be subordinate." Brown v. 

Kittle, 225 Va. 451, 457, 303 S.E.2d 864, 868 (1983). "The 

custody of minor children in such controversies is never to be 

given to one parent to punish the other." Rowlee v. Rowlee, 211 

Va. 689, 690, 179 S.E.2d 461, 462 (1971). 

 It is apparent that the basis for the trial court's 

"serious questions" about the mother's parenting abilities were 

the child's consistent refusal to comply with the visitation 

schedule and the mother's failure to correct the child's 

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behavior, namely by use of sanctions. Although the trial court 

criticized the mother for failing to use sanctions to achieve 

compliance, the trial court did not use sanctions either. Only 

after custody was transferred was mother held in contempt and 

even then, the 30-day sentence was suspended in its entirety. 

 Additionally, there was no evidence that the child had 

adjustment problems in other areas of her life. In fact, until 

this litigation the child participated in various athletic 

activities, dance classes, cheerleading, and performed well, 

both academically and socially, in school. She was not in any 

trouble with authority figures and was not running away from 

home. 

 Because the record includes transcriptions of proceedings 

after the transfer of custody, we are aware that the trial 

court's prediction that the child would run away as a response 

to the transfer of custody came true. Additionally, she was 

hospitalized in a psychiatric hospital and thereafter, upon 

release, was enrolled in a boarding school some distance from 

her home. 

 This case does not involve a custody determination between 

biological parents who lived together and jointly raised a child 

until a recent separation. Similarly, this case does not 

involve a long separation of biological parents with a history 

of continuous visitation by the noncustodial parent. Rather, 

this case involves unmarried biological parents who never lived 

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with one another, never jointly parented the child, and a 

thirteen-year-old girl with whom the father had virtually no 

relationship. On the facts of this case, it was an abuse of 

discretion to transfer legal custody of this thirteen-year-old 

girl to her father who was essentially a stranger to her. 

IV. ATTORNEY'S FEES AND COSTS

 We find no basis for the award of attorney's fees and costs 

on appeal. 

V. CONCLUSION

 Accordingly, we reverse the order changing custody of the 

daughter from the mother to the father and remand to the trial 

court for entry of an order consistent with this opinion and for 

further proceedings as necessary. 

Reversed. 

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Coleman, J., dissenting. 

 The bond between a parent and child is one of the strongest 

recognized in the law. Although the father, David Long, and 

daughter, Christan Cintron, had only occasional and sporadic 

visitations since her birth, the trial judge was correct in 

recognizing, in my opinion, that the best interest of the child, 

which is always the paramount concern in a child custody 

dispute, would be served by encouraging and promoting a 

relationship between father and daughter, even over the 

resistance and objection of the mother. Thus, I respectfully 

disagree with the majority that the trial judge abused his 

discretion in ordering that custody of the parties' 

thirteen-year-old daughter be transferred to the father. 

 The trial judge in this case was confronted with a 

situation in which the mother was persistently frustrating and 

resisting the court-ordered visitation between the daughter and 

father and, consequently, was influencing and supporting the 

daughter's unwillingness and resistance to the visitation. The 

trial court's decision to change custody was the most reasonable 

and viable remedy that the trial judge had available to effect 

the desired result and overcome the mother's and child's 

resistance and disobedience to the court's visitation order. 

Admittedly, the child had done well under the single parenting 

of the mother; nevertheless, in my opinion, the trial court did 

not err in finding that a material change of circumstance had 

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occurred, which justified the trial judge's 

remedy-of-last-resort while at the same time addressing the 

mother's and child's continued and persistent disobedience to 

the court's orders. I would affirm the trial judge. 

 Admittedly, this case presents a difficult situation in 

which a father is being awarded custody of his thirteen-year-old 

daughter when he has only occasionally visited with his daughter 

since her birth and has no established close relationship with 

her. Apparently, during the child's early years, the father did 

not attempt to establish a relationship with her, at least in 

part, because of the mother's hostile attitude and lack of 

cooperation. While the record does not fully explain the 

reasons for the mother's attitude, it may well be that past 

events between the parents justified a level of resentment and 

hostility from the mother toward the father. For whatever 

reason, the father did not pursue legal action in order to 

establish a relationship with his daughter until the child 

reached an age that she could exercise some judgment and 

volition. However, when the child was six or seven years old, 

she had asked the mother to arrange visitation with her father, 

but the mother refused. Although the father occasionally, 

albeit sporadically, visited his daughter over the years, in 

November 1997, he sought court-ordered visitation. At one point 

during the two years of hearings regarding visitation, the child 

told the trial judge that she had "no reservations whatsoever 

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about seeing her father, re-establishing a relationship with 

him, and spending time with him." The trial court found that 

the father was a fit person to have a parental relationship with 

the child and the evidence showed that he was "respectful," 

"cooperative," and "pleasant." Although the court ordered 

visitation between the father and daughter, the mother has not 

cooperated in bringing about the visitation and has not 

encouraged the cooperation of the child. The court found that 

the child's attitude and resistance was due to the influence and 

lack of cooperation of the mother. 

 The trial court's efforts to effectuate a relationship 

between the father and daughter through visitation, and before 

resorting to a change of custody, are well documented in the 

record. The trial court first undertook to initiate the 

relationship by establishing visitation rights with the father 

and daughter and appointing a clinical psychologist to work with 

the parents and child to facilitate the visitation and deal with 

the mother's hostility and daughter's lack of cooperation. A 

second psychologist became involved to further assist in 

bringing about a relationship between the father and daughter. 

According to one of the mental health experts, the mother's 

attitude toward the father was "about as low an opinion as I've 

heard expressed. It was bitter and hostile . . . it's about as 

emotionally charged an atmosphere as I've ever had in my office 

in sixteen years." One of the psychologists testified that the 

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mother exerted great influence over the child and that she was 

not supporting the child's re-introduction to the father nor the 

court-ordered visitation. In a further effort to enforce its 

visitation decree, the court attempted to exercise its contempt 

powers against the mother. After three show cause hearings, in 

which the court threatened the mother with contempt, the court 

eventually held her in contempt for violating its visitation 

order when it finally awarded custody to the father. In this 

vein, the majority suggests that the trial court might have more 

forcefully pursued contempt in order to enforce its visitation 

decree rather than order a change in custody. However, in my 

opinion, that decision was within the trial court's discretion. 

I believe it was a proper exercise of the court's discretion to 

pursue that avenue by awarding custody to the father. Holding 

the mother in contempt and fining or imprisoning her would have 

served only to exacerbate further the hostilities between the 

parents and to frustrate further the court's efforts to bring 

the child and father together. 

 I am not insensitive to the fact that the mother has been 

the sole caretaker and provider for this young girl from birth 

until her teenage years. However, the trial court was not 

unmindful that in large measure the child's unwillingness to 

visit with her father was due to the mother's opposition and 

unwillingness to allow the father to have a relationship with 

the child. 

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 The best interest of the child is always the guiding 

standard for all custody determinations and that decision is to 

be made after consideration of the factors in Code § 20-124.3. 

The trial court has broad discretion in making a custody 

determination that will serve the child's best interest, and we 

will not reverse that decision unless plainly wrong or without 

evidence to support it. See Code § 8.01-680; Brown v. Brown, 

218 Va. 196, 237 S.E.2d 89 (1977). Code § 20-108 provides, 

"[t]he intentional withholding of visitation of a child from the 

other parent . . . may constitute a material change in 

circumstances justifying a change of custody in the discretion 

of the court." By enacting this provision in Code § 20-108, the 

General Assembly expressly acknowledged and sanctioned the 

remedy that the trial judge resorted to in this difficult 

situation. Where one parent disobeys and attempts to frustrate 

the order of a court and the rights of a parent to child 

visitation, the most viable solution to deal with a parent's 

recalcitrance and not to reinforce the parent's unwillingness to 

cooperate with a visitation plan may well be to change custody, 

as the trial judge did in this case. That is the difficult 

decision which a trial judge must make. In my view, the 

majority's holding seriously frustrates the efforts of a trial 

court to effectuate its decision to establish a visitation 

relationship between a parent and child when deemed to be in the 

child's best interest. The majority's holding severely limits 

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or disregards the power granted to a trial court by Code 

§ 20-108 to enforce its visitation orders. Although the trial 

court's change of custody from the mother to the father may be 

considered a bold measure to enforce visitation, I do not see 

that such measure was an abuse of discretion. I would affirm 

the trial court, therefore, I dissent from the majority's 

decision. 

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