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JUNE 13, 2000

Record No. 0078-00-4





Kathleen H. MacKay, Judge

(Mark A. Barondess; Erika B. Schiller; Sandground Barondess
West & New, P.C., on briefs), for appellant.

(Douglas J. Sanderson; McCandlish & Lillard, P.C., on
brief), for appellee.

(Melinda S. Norton; Matthews, Snider, Norton &
Fitzner, on brief), guardian ad litem for Andrew
Lamont and Elizabeth Lamont.

Present: Judges Benton, Coleman and Willis



The trial court granted Sheila Ann Lamont primary physical
custody of the parties’ two minor children, Andrew and Elizabeth,
and awarded the parties joint legal custody. On appeal,
Michael A. Lamont contends that the trial court erred or
abused its discretion by (1) failing to award him sole legal
custody despite evidence of physical and emotional abuse of the
children by mother; (2) failing to set a visitation schedule
equally dividing the children’s time with their parents; and (3)
failing to set a summer schedule equally dividing the children’s
time between the parties. Upon reviewing the record and briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.

The parties continued to reside in the marital residence
during the initial stages of the divorce proceedings. Pursuant to
an emergency motion of the guardian ad litem, the
trial court entered a Protective Order and Pendente Lite
Order establishing a "bird’s nest" custody arrangement
in which the children, ages three and five, remained in the
marital home with the mother during the week and with the father
during the weekend. At the conclusion of a four-day evidentiary
hearing on custody and visitation, the trial court ruled that the
parties would share joint custody of the children; that the
father would have the children three weekends each month; and
that each party would have two weeks with the children each
summer. The trial court also continued the appointment of the
guardian ad litem. The father appealed the order
setting out the court’s ruling.

Joint Custody

The father contends that the trial court erred by failing to
award him sole legal custody. We disagree. "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). 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. See Farley v. Farley,
9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990). "Absent
clear evidence to the contrary in the record, the judgment of a
trial court comes to an appellate court with a presumption that
the law was correctly applied to the facts." Bottoms v.
, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995).

The father contends that there was overwhelming evidence that
the mother physically and emotionally abused the parties’
children. While there was evidence that the mother had acted in
anger in disciplining the children, there was also extensive
evidence that she was the primary caregiver who actively nurtured
both children. Both parties had trouble with anger management.
Dr. Christopher H. Lane, a licensed clinical psychologist who
examined the parties and their children, opined that "both
these individuals are likely to behave at times in a manner that
is anathema to the best interests of these children." Dr.
Lane testified as follows:

[T]hey are basically high-functioning people
who my belief is that under the conditions of
long-term marital stress have behaved very badly
in terms of self control, in terms of taking
responsibility, in terms of being able to focus
on their children’s needs rather than their own.

I think they are both critically compromised
in those areas. I also think they do not
— neither of them show any particular
positive signs with regard to being able to
cooperate with one other around the children’s

The trial court heard the evidence ore tenus and
received the recommendation of the guardian ad litem.
In comments from the bench, the trial court reviewed both the
statutory provisions of Code Sect.  20-124.2(B) and the
factors set out in Code Sect.  20-124.3. Based upon the
evidence and the statutory factors, the trial court found that
the best interests of the children required the active
participation of both parents and that joint legal custody was
the best means to ensure that participation. Accordingly, the
trial court ordered the parties to share joint legal custody,
granting the guardian ad litem the final
decision-making authority in instances where the parties were
unable to reach an agreement.

The trial court required both parties to continue therapy
until released by their therapists. Based upon the evidence heard
ore tenus by the trial court over the four-day
hearing, we find no abuse of discretion or error in the decision
to award the parties joint legal custody.


The father also contends that the trial court erred by failing
to grant him an equal amount of time with the children each week.
We disagree. The trial court adopted the visitation schedule
proposed by the father, although reversing the roles of the
parties. The father received visitation on the first, second, and
fourth weekend of each month from Friday night until Sunday
night. The trial court also granted the father’s request for
additional visitation each Tuesday evening. In addition, the
parties split or alternate all holidays. The court’s decision was
based in part on the evidence concerning the father’s regular
work schedule. We cannot say that the trial court’s decision was
either an abuse of discretion or unsupported by the evidence.

Summer Visitation

The father also contends that the trial court erred by failing
to give him more visitation in the summer. Both parents were
awarded two uninterrupted weeks with the children each summer.
The trial court’s decision was based upon the evidence and the
statutory factors. We find no abuse of discretion or reversible

Accordingly, the judgment of the trial court is summarily




[1] Pursuant to Code Sect.  17.1-413,
recodifying Code Sect.  17-116.010, this opinion is not
designated for publication.