COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

SHARONE DENI BOISSEAU 

 MEMORANDUM OPINION*

v. Record No. 2407-95-2 PER CURIAM 

 OCTOBER 22, 1996 

JAMES MAURICE SCOTT 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L. A. Harris, Jr., Judge 

 Marilynn C. Goss (Central Virginia Legal Aid 

Society, Inc., on brief), for appellant. 

 G. Ronald Grubbs, Jr., for appellee. 

 Sharone Deni Boisseau appeals the decision of the circuit 

court awarding physical custody of the parties' child to James 

Maurice Scott. Appellant raises three questions on appeal: 

(1) whether the trial court erred in denying appellant's motion 

for a continuance and motion to rehear; (2) whether the trial 

court erred in finding that a change of custody was in the best 

interests of the child; and (3) whether the trial court erred in 

finding appellant's relocation to Williamsburg was sufficient 

grounds to change custody. We conclude that there is sufficient 

evidence in the record to support the circuit court's findings 

and, accordingly, affirm the decision. 

 On April 19, 1995, the Henrico Juvenile and Domestic 

Relations District Court awarded appellant custody of the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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parties' son, Che' Mandell Boisseau, and child support payments 

of $215. The child's father, James Maurice Scott, appealed the 

decision to the Circuit Court of Henrico County. 

 At the circuit court hearing on August 28, 1995, appellant 

appeared pro se and appellee appeared in person and by counsel. 

Appellant requested a continuance to obtain counsel, explaining 

that she had only been able to get an appointment with legal aid 

for the morning of the hearing. The court, after questioning 

appellant about her efforts to obtain counsel, denied the motion. 

 Appellant proceeded to put on her case, examining three of her 

own witnesses and cross-examining appellee and his witnesses. 

Appellant's witnesses testified that appellant had been the 

primary caretaker of the child and had provided for her son's 

physical and emotional needs. Appellant testified that she had 

recently relocated with her parents and son to Williamsburg. 

Appellant explained that she moved in order to get away from the 

"verbal abuse" of appellee. Appellee denied verbally abusing 

appellant, and the parties disagreed as to whether notice had 

been given to appellee of appellant's relocation. 

 Appellee put on evidence of his positive and continuous 

relationship with his son. Appellee also testified that he had 

regularly and willingly paid $25 a week in support for his son. 

Appellant asserted that appellee had verbally abused her and 

occasionally refused to give her funds. It was also established 

that appellee had fathered two other sons by two different 
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mothers and that appellee had never been married to either 

mother. Appellee's current wife, with whom appellee has had no 

children, testified that she would welcome Che' Mandell Boisseau 

into her home. 

 The court announced that it would award joint legal custody 

to the parties and would take under advisement the issue of 

physical custody. A new hearing date was set for September 18, 

1995. At the September 18 hearing appellant again appeared pro

se and the appellee appeared in person and by counsel. After 

questioning appellant about her current place of residence and 

learning that she still resided in Williamsburg and had taken 

steps to enroll her son in school there, the court announced its 

decision, awarding sole physical custody to appellee. The order 

was entered on September 20, 1995, and on that day, appellant, by 

counsel, filed a Motion to Stay the Order Transferring Custody 

and Grant a Rehearing. Appellant's motion was argued October 10, 

1995, where both parties were represented by counsel. The 

circuit court denied the motion. 

Motion for Continuance

 "'The decision whether to grant a continuance is a matter 

within the sound discretion of the trial court. Abuse of 

discretion and prejudice to the complaining party are essential 

to reversal.'" Lowery v. Commonwealth, 9 Va. App. 304, 307, 387 

S.E.2d 508, 509 (1990) (citation omitted). See Autry v. Bryan, 

224 Va. 451, 454, 297 S.E.2d 690, 691-92 (1982). 
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 The record demonstrates that appellee appealed the district 

court's order on April 20, 1995. Appellant appeared without 

counsel at the July 10, 1995 docket call. When the trial date 

was set, the court urged appellant to retain counsel. On the 

August 28, 1995 trial date, appellant came to court with three 

witnesses but requested a continuance to obtain counsel. The 

appellee was present with counsel and witnesses. The court 

denied her motion, but granted her substantial latitude in the 

presentation of her case. Although the trial judge set another 

hearing date and took under advisement the question of physical 

custody of the child, appellant failed to obtain counsel for that 

hearing. Only after the court entered judgment, did appellant 

obtain counsel, who filed a motion to rehear, alleging that 

appellant tried to obtain counsel immediately after the July 

docket call, but the earliest appointment she could get was for 

the day of trial. 

 Appellant has not demonstrated that the trial court abused 

its discretion in denying her motion for a continuance or that 

she was prejudiced by the denial. The record established that 

both parties had witnesses present and that appellant had been 

earlier urged to come to court with counsel. Appellant called 

witnesses in her own behalf, testified herself, and 

cross-examined the witnesses called by appellee as well as 

appellee himself. Therefore, the trial court did not abuse its 

discretion in denying appellant's request for a continuance. 
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Best Interests of the Child

 "In matters concerning custody and visitation, the welfare 

and best interests of the child are the `primary, paramount, and 

controlling considerations.'" Kogon v. Ulerick, 12 Va. App. 595, 

596, 405 S.E.2d 441, 442 (1991) (citation omitted). The trial 

court is vested with broad discretion to make the decisions 

necessary to safeguard and promote the child's best interests, 

and its decision will not be set aside unless plainly wrong or 

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

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

 The trial court ruled that the best interests of the child 

would be served by granting physical custody to appellee. The 

evidence demonstrated that appellee and his new wife lived in a 

three-bedroom home. Both parents were college-educated and had 

stable jobs. Appellee had made arrangements for his child to 

attend the local school and participate in neighborhood sports 

activities. Witnesses testified that appellee was involved with 

his son and had a good relationship with him. Appellee's new 

wife testified that her ten-year-old son currently lived with 

them and got along well with appellee's son and that she was 

supportive of appellee's desire to have his son live with them. 

 Appellant's witnesses testified that she was a good mother 

who was actively involved with her son's school and regularly 

took him to church. Appellant testified that, although she was 

presently unemployed, in the past five years she had worked 
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through agencies doing day work, babysitting, and cleaning. 

Appellant lived with her disabled parents and had done so for a 

number of years. They lived in an apartment in the Richmond area 

and had recently moved to another apartment in Williamsburg. The 

testimony indicated that appellant and her parents had relocated 

to Williamsburg "because 'she felt like it.'" Appellant 

testified that the move "was only temporary" and she intended to 

return "sometime." 

 The trial court noted that it considered the evidence heard 

ore tenus as well as the statutory factors set out in Code 

§§ 20-124.2 and 20-123.3 before determining that it was in the 

best interests of the child to award physical custody to 

appellee. Credible evidence supports the finding of the trial 

court. 

Appellant's Relocation

 The trial court questioned why appellant relocated from the 

Richmond area to the Williamsburg area. Appellant alleged that 

appellee had subjected her to verbal abuse. Appellant's 

witnesses indicated that appellant moved merely because she 

wanted to do so, and appellant herself indicated that the move 

was only temporary. Appellee denied any verbal abuse and 

testified that appellant had been less cooperative in 

facilitating visitation when she learned he was getting married. 

 The court found that the move to Williamsburg was 

detrimental to the child's best interests, and continued the 
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matter to allow appellant to return with the child to the 

Richmond area before ruling on physical custody. At the 

subsequent hearing, appellant appeared without counsel and 

indicated that she had enrolled the child in school in 

Williamsburg. 

 Credible evidence supports that trial court's determination 

that appellant's move away from the area where the child had the 

opportunity to have a substantial relationship with his father 

was not in the child's best interests. Appellee's home was 

stable and provided the benefits of a neighborhood setting with 

additional activities appropriate for children. Moreover, the 

evidence proved that the appellant was unemployed and did not 

prove that the "temporary" move to Williamsburg provided any 

benefit to the child. 

 Prior to the filing of the custody petition in the juvenile 

and domestic relations district court, no court order existed 

determining custody of the child. Thus, appellee was entitled to 

a de novo hearing in the circuit court upon his appeal from the 

initial custody determination by the juvenile court. Peple v. 

Peple, 5 Va. App. 414, 419, 364 S.E.2d 232, 236 (1988). "A de

novo hearing means a trial anew, with the burden of proof 

remaining upon the party with whom it rested in the juvenile 

court." Parish v. Spaulding, 20 Va. App. 130, 132, 455 S.E.2d 

728, 729 (1995) (citations omitted). At the de novo hearing, the 

primary issue was the best interests of the child. Kogon, 12 Va. 
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App. at 596, 405 S.E.2d at 442. 

 Accordingly, the decision of the circuit court is affirmed. 

 Affirmed.