COURT OF APPEALS OF VIRGINIA 

Present: Judges McCullough, Decker and Senior Judge Felton 

ELIZABETH A. FOSTER 

 MEMORANDUM OPINION*

v. Record No. 1508-15-2 PER CURIAM 

 FEBRUARY 23, 2016 

RANDY A. FOSTER 

 FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY 

Paul W. Cella, Judge 

 (Debra L. Mallory; Taliaferro & Mallory, LLP, on brief), for 

appellant. 

 No brief for appellee. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

 Elizabeth A. Foster (mother) appeals the custody ruling in a final decree of divorce. Mother 

argues that the trial court erred by (1) finding that the fourth factor in Code § 20-124.3 was “the 

most important factor, but failing to give due consideration ‘to other important relationships of the 

child, including but not limited to siblings, peers, and extended family members;’” (2) failing to 

consider the history of family abuse committed by Randy A. Foster (father); (3) failing to consider 

father’s “failure to actively support the children’s contact and relationship with Mother, including 

the Father unreasonably denying the Mother access to and visitation with the children;” (4) failing 

to consider father’s twelve-hour work days and his thirty-six-hour per month commitment to the 

local fire department; (5) “giving significant weight to an irrelevant factor, i.e. whether a parent 

resides in someone else’s house, and finding it to be a negative factor against the Mother, but not 

against the Father;” (6) failing to consider “the nature and extent of the Mother’s and the Father’s 

respective support systems;” (7) “basing its decision on conclusions and opinions with no evidence 

UNPUBLISHED 
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in the record to support them;” and (8) failing to consider father’s “failure to supervise his youngest 

child, allowing the child to be exposed to a hazardous material.” Upon reviewing the record and 

the opening brief, we conclude that this appeal is without merit. Accordingly, we summarily 

affirm the decision of the trial court. See Rule 5A:27. 

BACKGROUND 

 “On appeal, we view the evidence in the light most favorable to . . . the party prevailing 

below.” D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 335, 610 S.E.2d 876, 882 (2005) 

(citations omitted). 

 Mother and father married on July 9, 2009 and separated on March 16, 2013. The parties 

have three minor children. 

 On April 26, 2013, mother filed a complaint for divorce. Father filed an answer and 

cross-complaint. On June 18, 2013, the trial court entered a pendente lite order and awarded 

joint legal custody to the parties and primary physical custody to the father. 

 On July 1, 2015, the parties appeared before the trial court for a final hearing. The parties 

resolved most of their issues, but not custody and visitation. After hearing the evidence and 

argument, the trial court awarded joint legal custody to the parties and primary physical custody 

to father. The trial court noted that the children were doing well in school and had friends in 

Dinwiddie, where they lived with father. It further emphasized that the children needed stability, 

which they would have in father’s care. Mother lived in a different locality, and the children 

would have to switch schools if they were to live with mother. The trial court found it was in the 

children’s best interests to remain in father’s custody. 

 On September 16, 2015, the trial court entered the final decree of divorce and an 

addendum to the final decree of divorce. This appeal followed. 
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ANALYSIS 

Mother appeals the trial court’s award of primary physical custody to father. “In matters 

of custody, visitation, and related child care issues, the court’s paramount concern is always the 

best interests of the child.” Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 

(1990). “[T]here is a presumption on appeal that the trial court thoroughly weighed all the 

evidence, considered the statutory requirements, and made its determination based on the child’s 

best interests.” D’Ambrosio, 45 Va. App. at 335, 610 S.E.2d at 882 (citing Brown v. 

Spotsylvania Dep’t of Soc. Servs., 43 Va. App. 205, 211, 597 S.E.2d 214, 217 (2004)). “As long 

as evidence in the record supports the trial court’s ruling and the trial court has not abused its 

discretion, its ruling must be affirmed on appeal.” Brown v. Brown, 30 Va. App. 532, 538, 518 

S.E.2d 336, 338 (1999). 

 A court “shall consider” the following factors in Code § 20-124.3 to determine the “best 

interests of a child” for custody or visitation: 

1. The age and physical and mental condition of the child, giving 

due consideration to the child’s changing developmental needs; 

2. The age and physical and mental condition of each parent; 

3. The relationship existing between each parent and each child, 

giving due consideration to the positive involvement with the 

child’s life, the ability to accurately assess and meet the emotional, 

intellectual and physical needs of the child; 

4. The needs of the child, giving due consideration to other 

important relationships of the child, including but not limited to 

siblings, peers and extended family members; 

5. The role that each parent has played and will play in the future, 

in the upbringing and care of the child; 

6. The propensity of each parent to actively support the child’s 

contact and relationship with the other parent, including whether a 

parent has unreasonably denied the other parent access to or 

visitation with the child; 
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7. The relative willingness and demonstrated ability of each parent 

to maintain a close and continuing relationship with the child, and 

the ability of each parent to cooperate in and resolve disputes 

regarding matters affecting the child; 

8. The reasonable preference of the child, if the court deems the 

child to be of reasonable intelligence, understanding, age and 

experience to express such a preference; 

9. Any history of family abuse as that term is defined in § 16.1-228 

or sexual abuse. If the court finds such a history, the court may 

disregard the factors in subdivision 6; and 

10. Such other factors as the court deems necessary and proper to 

the determination. 

 Mother challenges the trial court’s ruling in light of several of the Code § 20-124.3 

factors. When it issued its ruling, the trial court stated, “In terms of what is in the best interest of 

the children, I think the fourth factor, the needs of the children, is really the most important one 

because they’re the ones this is all about.” Mother argues that the trial court failed to consider 

that father did not promote the children’s relationships with their extended family. There was 

evidence that father was estranged from his paternal side of the family. Mother testified that 

during her visitation time, she took the children to visit their paternal grandfather and other 

paternal relatives, as well as her extended family. She explained that her family and father’s 

paternal family were available to help her with the children. The trial court considered the 

parties’ relationship with their extended families and noted that father’s “rupture with his father 

is unfortunate.” 

 Mother also questions the trial court’s finding that the children were doing well in school, 

but the parties testified about how well the children were doing. Mother herself testified that 

oldest child was doing “fairly well in school” and later that the children were doing “just fine.” 

The youngest child was not in school. The oldest child was in first grade, and the middle child 

was in kindergarten. 
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 In addition to her challenge to the fourth factor, mother argues that the trial court erred in 

its assessment of the ninth factor of Code § 20-124.3. She asserts that she presented evidence of 

father’s temper and abuse. Mother relies on the fact that in November 2012, father was charged 

with assault and battery of their child, who was three years old at the time. The Dinwiddie 

County Juvenile and Domestic Relations District Court found that the facts were sufficient to 

find guilt but deferred adjudication to November 27, 2014, at which time the charges were 

dismissed. Mother also reiterates father’s arguments with his father to illustrate father’s anger. 

She also testified about an incident when the youngest child was not yet two years old, and he 

got diesel fuel on him at the fire station where father volunteered. Mother argued that father was 

not adequately supervising the child and exposed him to “hazardous” materials. 

 Mother also contends the trial court did not consider the sixth factor of Code § 20-124.3. 

Mother alleges that father did not allow her to speak with the children on a daily basis and denied 

some of her requests for additional visitation. Father testified that mother speaks with the 

children on the phone several times a week. He gave examples of how he has tried to work with 

mother in providing her additional visitation, but she would not work with him. The trial court 

disagreed with mother and said, “I don’t necessarily look at it as Mr. Foster trying to be a bully 

or trying to see what the minimum is he can get away with. I look at it as being a lack of 

agreement on both sides with some fault on both sides.” 

 Mother further asserts that the trial court erroneously considered the parties’ work 

schedules. Both parties work shift work with rotating schedules.1

 Father testified that he 

previously worked day shift from 7:00 a.m. to 7:00 p.m. for two weeks, and then worked night 

shift from 7:00 p.m. to 7:00 a.m. for two weeks. However, as of July 1, 2015, he permanently 

 1

 They work four days one week and three days the next week, and they are off every 

other weekend. Previously, wife was off when husband was at work, and husband was off when 

wife was at work. 
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works day shift. In addition, he volunteers with a local fire department for thirty-six hours per 

month. Meanwhile, mother works a permanent night shift from 6:00 p.m. to 6:00 a.m. The trial 

court held that it would not be in the children’s best interests “to uproot them and move them 

somewhere else where the parent is working all night.” The trial court found that father’s new 

work schedule will be “a big improvement and be very helpful.” Father’s shift was now 

consistent and provided more stability. 

 In addition, mother contends the trial court erred by “giving significant weight to an 

irrelevant factor, i.e. whether a parent resides in someone else’s house.” The trial court 

considered both parents’ living situations and said, “With Ms. Foster working this schedule 

where she works all day and all night and odd times living in someone else’s house, I don’t think 

that overall environment would be in the children’s best interest.” Mother testified that she lived 

with her aunt and uncle and their three boys. She explained that the parties’ daughter has her 

own bedroom, and their two sons share a bedroom with one of her nephews. Father testified that 

he lives with his girlfriend. The trial court’s comments do not indicate that it gave “significant 

weight to an irrelevant factor;” instead, the trial court considered the parties’ living situations as 

one part of its custody decision. 

 In issuing its ruling, the trial court emphasized that “the best interest of the children is the 

paramount factor.” The trial court examined how the children were doing in father’s custody. 

The evidence supports the trial court’s conclusion that they are doing well. 

 Despite mother’s arguments, a court “is not required to quantify or elaborate exactly what 

weight or consideration it has given to each of the statutory factors.” Sargent v. Sargent, 20 

Va. App. 694, 702, 460 S.E.2d 596, 599 (1995) (quoting Woolley v. Woolley, 3 Va. App. 337, 

345, 349 S.E.2d 422, 426 (1986)). The trial court clearly considered the children’s best interests 

and focused on the stability that father offered them. 
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“Where the record contains credible evidence in support of the findings made by that 

court, we may not retry the facts or substitute our view of the facts for those of the trial court.” 

Ferguson v. Stafford Cty. Dep’t of Soc. Servs., 14 Va. App. 333, 336, 417 S.E.2d 1, 2 (1992). 

Although the record shows that Elizabeth Foster is a loving and devoted parent and that Randy 

Foster is not without his flaws, it was for the trial court to weigh the evidence in its totality. We 

will not substitute our judgment for that of the trial court so long as credible evidence supports 

the judgment below. The evidence supports the trial court’s ruling. Accordingly, the trial court 

did not err in awarding physical custody to father. 

CONCLUSION 

 For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27. 

Affirmed.