COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Duff 

Argued at Richmond, Virginia 

RUTH B. HUGHES 

 MEMORANDUM OPINION* BY 

v. Record No. 2565-97-2 JUDGE CHARLES H. DUFF 

 AUGUST 11, 1998 

RICHARD LEE HUGHES 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Jill L. Weiss (Hunton & Williams, on briefs), 

for appellant. 

 Denis C. Englisby (Englisby & Englisby, on 

brief), for appellee. 

 Ruth B. Hughes (mother) appeals the decision of the circuit 

court awarding custody of the parties' two minor children to 

Richard Lee Hughes (father). The trial court ordered a change in 

custody based solely upon evidence that mother was living in the 

same house with a man to whom she was not married. We reverse 

the trial court's custody decision and return custody to the 

mother. 

 "In 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) (citation omitted). 

 In matters of a child's welfare, trial 

courts are vested with broad discretion in 

making the decisions necessary to guard and 

to foster a child's best interests. A trial 

 

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

designated for publication. 
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court's determination of matters within its 

discretion is reversible on appeal only for 

an abuse of that discretion, and a trial 

court's decision will not be set aside unless 

plainly wrong or without evidence to support 

it. 

Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990) 

(citations omitted). 

 The record before us shows that the parties separated due to 

various incidents of abuse by father often occurring in the 

presence of the two young children, Adam and Luke Boyd. On one 

occasion when the children were present in the same room, father 

threw mother against the wall and held her there by her neck, 

leaving her with bruises. On another occasion, father threatened 

to kill both himself and mother with a gun. 

 After leaving the home because of such abuse, mother and the 

children moved in with her brother for a while and then to her 

parents' home. Due to her father's ill-health, she moved to a 

YMCA shelter and then to St. Joseph's Villa, which provides 

housing for abused and homeless women and their children. She 

was asked to leave the shelter because father sent her a package 

which contained alcohol, a violation of the shelter's rules. At 

this point Mike Kopeski, a co-worker of mother, offered to allow 

her and her children to stay in his home. In June 1996, Kopeski, 

mother and her two children moved into a two bedroom house. She 

testified that because she had no car and insufficient income to 

support the boys and herself separately, she had no other options 

than to accept Kopeski's offer. Mother denied having a sexual 
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relationship with Kopeski, although she admitted being in love 

with him. She produced evidence that Kopeski slept in one 

bedroom and that she and her two sons slept in the other bedroom. 

 She slept in the bottom bunk bed, one son slept in the top bunk, 

and the second son slept in a separate toddler bed in the room. 

 "Exposing children to their parents' living with persons to 

whom they are not married has been disfavored by our Supreme 

Court." Carrico v. Blevins, 12 Va. App. 47, 49, 402 S.E.2d 235, 

237 (1991) (citing Brown v. Brown, 218 Va. 196, 237 S.E.2d 89 

(1977)). In Brown, unlike the situation in the case before us, 

there was testimony that the mother's cohabitation adversely 

affected the children. See Brown, 218 Va. at 200, 237 S.E.2d at 

92. The trial court found that the mother's adulterous 

relationship rendered her "an unfit and improper person to have 

the care and custody of these children." Id.

 In Sutherland v. Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 

617, 618 (1992), this Court rejected the contention that Brown

established a per se rule that cohabitation renders a parent 

unfit. Despite the mother's adulterous cohabitation with another 

man, we found no abuse of discretion in the trial court's 

decision to allow mother to maintain custody of the parties' 

child. See id. at 44, 414 S.E.2d at 618. 

 Similarly, in Ford v. Ford, 14 Va. App. 551, 419 S.E.2d 415 

(1992), the trial court awarded the parents joint custody, 

despite the fact that the father lived with his girlfriend. The 
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evidence indicated that the father maintained a separate bedroom 

in the home. We found no abuse of discretion, noting that "no 

evidence was introduced that [the child] was exposed to the 

illicit nature of her father's relationship with [the 

girlfriend]" and that the father and his girlfriend "not only 

went to great lengths to shield [the child] from their adultery, 

they were also open with her about their ultimate intentions with 

regard to one another, telling her that they intended to marry." 

Id. at 555, 419 S.E.2d at 418. 

 In this instance, the trial court stated that it considered 

all of the statutory factors and that it did not "find the living 

arrangements that exist here with regard to these children to 

show that [mother] is an unfit mother." The court found 

insufficient evidence to prove adultery. Nonetheless, the court 

focused solely on mother's living with an unrelated male to 

change custody to father. The court noted that it was 

 of the opinion that the relationship, that 

the living arrangement, is more than one of 

more [sic] convenience. Were it not for that 

living relationship this Court would probably 

be more inclined to view the factors in this 

case as being persuasive of custody and 

support of [mother]. 

 No evidence was introduced to demonstrate that mother's 

cohabitation had an adverse impact on the children. Nonetheless, 

the court stated that 

 the question becomes this: How long do we 

have to wait to determine whether or not 

children are being adversely affected by a 

relationship in which there is a third party, 

unrelated male who could be the father of 
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[mother] living in the house. I don't 

believe I'm compelled to wait. These 

children are at very young, impressionable 

ages. These children are ages three and four 

and-a-half. . . . And this Court is not 

pleased with what it views to be the moral 

climate and atmosphere that exists within 

that household. 

The trial court concluded that the moral climate was 

inappropriate based solely on the fact of cohabitation. No 

evidence in the record supports the trial court's conclusion. 

 Code § 20-124.3 codifies the factors which the trial court 

must consider when determining the child's best interests for 

purposes of visitation and custody. Among those factors are 

"[a]ny history of family abuse." The court failed to address the 

allegations of abuse by father against mother, despite father's 

convictions for assault and battery arising from such abuse. The 

court noted no factor other than mother's living arrangement, and 

presumed an adverse impact and negative moral climate without 

evidentiary support. 

 Because the trial court's conclusion that mother's 

cohabitation adversely affected the children is not supported by 

evidence in the record, the decree is reversed. Custody of the 

parties' two sons is returned to mother. 

 Reversed.