COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

Argued by Teleconferencing 

CHARITO B. NEWLAND 

v. Record No. 0390-95-3 MEMORANDUM OPINION* BY 

 JUDGE SAM W. COLEMAN, III 

WILLIAM R. NEAL, JR. FEBRUARY 13, 1996 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles B. Flannagan, II, Judge 

 Ann M. Callaway, for appellant. 

 R. Wayne Austin (Johnson, Scyphers & Austin, 

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

 Charito B. Newland appeals the circuit court's order denying 

her petition for a change in custody of her daughter, Jearlean 

Delores Neal. Newland contends that the trial court erred by 

requiring her to prove by clear and convincing evidence that a 

change in custody was in the child's best interest and by finding 

that she failed to prove a change in circumstances sufficient to 

warrant a change in custody. Because the trial court erred by 

applying a clear and convincing evidence standard, we reverse its 

order and remand the case for the trial court to reconsider the 

evidence and whether the appellant proved by a preponderance of 

the evidence that a change in custody would be in Jearlean 

Delores Neal's best interests. 

 In Keel v. Keel, 225 Va. 606, 303 S.E.2d 917 (1983), the 

 

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

designated for publication. 
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Supreme Court established a two-prong test for determining 

whether a change in custody is warranted: "first, has there been 

a change in circumstances since the most recent custody award; 

second, would a change in custody be in the best interests of the 

child[]." Id. at 611, 303 S.E.2d at 921. The noncustodial 

parent has the burden to prove that there has been a change in 

circumstances since the last custody determination and "that a 

change in custody would be in the best interests of the child." 

Peple v. Peple, 5 Va. App. 414, 417, 364 S.E.2d 232, 235 (1988). 

 Here, the trial court acknowledged that a change in 

circumstance had occurred and found that appellant has made 

 a remarkable journey since the custody orders of 1988 

and 1989. At that time, she was an immigrant from the 

Philippines, separated, without family support or 

permanent living or employment arrangements. Since 

that time, she has graduated cum laude from Emory & 

Henry College with a degree in accounting, has become a 

naturalized citizen, has remarried to a career Navy 

serviceman, has secured stable employment and has 

manifested an extraordinary devotion to her daughter by 

frequent and costly trips from Texas and Maryland to 

exercise her rights of visitation. 

Nevertheless, the court held by letter opinion that appellant had 

"failed to show, by clear and convincing evidence, that the best 

interests of [Jearlean] w[ould] be served by removing her from" 

her father (emphasis added). Although appellant objected to the 

requirement that she must prove by clear and convincing evidence 

that a change in custody would be in the child's best interest, 

the trial court did not correct or clarify in its final order 

that it was applying a standard other than the clear and 
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convincing standard announced in its letter opinion. 

 It is well established that in custody disputes the best 

interests of the child are "paramount." See, e.g, Keel, 225 Va. 

at 612, 303 S.E.2d at 921; Turner v. Turner, 3 Va. App. 31, 36, 

348 S.E.2d 21, 24 (1986). Consequently, in a dispute between 

natural parents, the trial court shall change custody when a 

preponderance of the evidence proves that circumstances have 

changed which would make it in the child's best interest to be in 

the custody of the other parent. Even where third parties are 

seeking custody of a child viz-a-viz the child's parent, the 

trial court is required to determine "according to the 

preponderance of the evidence," whether a change is in the best 

interests of the child, once the presumption of parental custody 

has been rebutted by clear and convincing evidence. Walker v. 

Fagg, 11 Va. App. 581, 586, 400 S.E.2d 208, 211 (1991); see also

Szemler v. Clements, 214 Va. 639, 644-45, 202 S.E.2d 880, 885 

(1974). 

 In holding that the trial judge erred by applying the clear 

and convincing standard and remanding the case, we do not 

"supplant [his] judgment with our own," or suggest the result to 

be reached on remand. See Hughes v. Gentry, 18 Va. App. 318, 

325, 443 S.E.2d 448, 452 (1994). "To determine what is 'best' 

for the children the court must engage in a comparative analysis" 

between what will be the child's situation with each parent. 

Keel, 225 Va. at 613, 303 S.E.2d at 922. On remand, the trial 
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court must consider all relevant evidence that will "allow it to 

make a rational comparison between the circumstances of the two 

parents as those circumstances affect the child[]." Id. 

 Although the trial judge recognized the positive changes and 

improvements appellant has made in her life, he also found that 

the father has "manifested an extraordinary devotion to 

[Jearlean], caring and providing for her since 1988." The judge 

noted that "[t]he father has also remarried, works for the same 

employer as at the time of the divorce and spends considerable 

time involving himself in [Jearlean's] activities." Therefore, 

although the record reveals that the trial judge employed a 

comparative analysis contemplated under Keel, it applied a higher 

standard than the law requires in order for the noncustodial 

parent to prove that a change in custody would be in the child's 

best interest. Thus, we remand the case solely to have the trial 

judge determine whether the noncustodial parent has proven by a 

preponderance of the evidence that a change in custody would be 

in the child's best interest. On remand, the trial judge shall 

only consider the present record and any additional changes that 

may have occurred subsequent to the last hearing. 

Reversed and remanded.