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LANE v. LANE (unpublished)


MAY 20, 1997
Record No. 2419-96-4




Arthur B. Vieregg, Jr., Judge
Present: Judges Bray, Annunziata and Overton


(Marcia M. Maddox; Heather A. Cooper; Law Office of Marcia M.
Maddox, on briefs), for appellant.

(David D. Masterman; Cheryl K. Graham; Condo & Masterman,
on brief), for appellee.

Adrienne H. Lane (mother) appeals the custody and visitation
decision of the circuit court. The court awarded custody of the
parties’ two adopted sons to James Sirois Lane (father). Mother
contends the trial court erred by (1) failing to properly
consider the expressed wishes of the parties’ older son; (2)
failing to protect the best interests of the children; and (3)
awarding custody and visitation in a punitive manner. 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. Rule 5A:27.

"In matters concerning custody and visitation, the
welfare and best interests of the child are the ‘primary,
paramount, and controlling considerations.’" Kogon v.
, 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).


Among the factors to be considered by a court determining the
best interests of a child is "[t]he 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." Code ? 20-124.3(7). Mother contends that
the trial court failed to properly consider her son’s expressed
wish that she have custody.

The record contains the transcript of Jonathan’s testimony to
the court, during which Jonathan indicated he wanted to be with
his mother because he could talk to her more easily and because
he was afraid of his father. The court noted that it would
consider Jonathan’s testimony:

But what you say is not necessarily — will not in fact
determine what I decide. It will be a decision in terms of
what I think your best interests are and on the basis of
everything that I’ve heard.

After reviewing all the evidence, the court indicated it
placed "little weight" on Jonathan’s stated preference
when reaching the custody decision, finding that:

given Jonathan’s situation, his intelligence, his age, his
relationship with those in the household, and being an
adopted child, it would have been unusual for him to have
expressed any other preference in the absence of child abuse
or neglect by [mother] or an overwhelming affinity for

The court found Jonathan’s testimony to be "consistent
with a young man who does not wish to disappoint those who have
an investment in his stated preference."

The trial court considered Jonathan’s stated custody
preference, but found the testimony less than fully credible in
the court’s assessment of the totality of the evidence and
Jonathan’s best interests. We find neither error nor abuse of


The court received four days of testimony from numerous
witnesses. Commenting on the evidence, the court noted that many
of mother’s witnesses were clearly biased and less than credible.
However, the court noted that it found mother’s testimony, viewed
in light of the other evidence, as determinative.

I found the single most important factor is [mother’s] inability to appreciate the effect of her decisions on her
children. Furthermore, the seriousness of that inability is
magnified by [mother’s] cognitive difficulties, which were . . .
amply reflected in her testimony before this Court.

The court noted that mother "generally is quite disposed
to uncritically follow her own whims or the suggestions of those
around her, even when those whims or suggestions of others may
negatively impact her children." The court noted that the
children need stability, discipline and structure, which mother
had failed to provide. The evidence indicated that mother was
caring, but failed to handle her parental responsibilities, some
of which were then assumed by the older daughter or a foreign
exchange student who lived in mother’s home.

Dr. William Zuckerman testified as an expert witness after
conducting a custody evaluation of the parents and sons. While
noting that the children loved both parents, Dr. Zuckerman noted
that the children needed consistency "in order to promote
self-esteem and help them feel structured and help them feel
secure." Mother’s thinking was disorganized and illogical
and she had "a lot of trouble being consistent." Dr.
Zuckerman also noted:

I think it would be very wrenching for them to be moved
away from their mother; but, in the long run, the kind of
security and structure that [father] can provide, I think, is
a very considerable factor . . . .

Dr. Zuckerman recommended that father have custody.

Dr. Richard David had provided therapy to the children for
almost a year. While Dr. David believed that the children should
remain with mother, he testified that both children had a good
relationship with father and that both needed structure. [2]

While recognizing that "both of these parents have
troublesome shortcomings," the court concurred with Dr.
Zuckerman’s recommendation that the needs of the children would
be better served by awarding custody to father. The court’s
decision was based upon its assessment of the children’s best
interests in light of its determination of the credibility of the
witnesses’ ore tenus testimony. That decision is
neither clearly wrong nor unsupported by the evidence.


Mother contends the custody and visitation order was punitive,
based upon an unsupported claim that her relationship with the
foreign exchange student residing in the home was
"unnatural." Mother also contends that the court erred
in placing undue emphasis on Dr. Zuckerman’s testimony, by
characterizing mother’s witnesses as biased, and by relying upon
the court’s personal conjecture.

"[T]he weight which should be given to evidence and
whether the testimony of a witness is credible are questions
which the fact finder must decide." Bridgeman v.
, 3 Va. App. 523, 528, 351 S.E.2d 598, 601
(1986). The court recognized that "a reasonable cooling off
period" was required after the tensions of the contested
custody litigation. After such period, the court directed the
parties to work together to promote the welfare of the children
which could include modifications to the "minimum
baseline" visitation. We find no evidence that the court’s
visitation decision was punitive or was intended to promote any
objective other than the best interests of the children.

Accordingly, the decision of the circuit court is summarily




Pursuant to Code ? 17-116.010 this opinion is not
designated for publication.

[2] We find no error in the trial
court’s denial of mother’s motion to add or substitute an expert
witness. Mother identified the additional witness only after the
June 6, 1996 pretrial conference and order listing the expert
witnesses permitted to testify. See City of Hopewell v.
County of Prince George
, 240 Va. 306, 314, 397 S.E.2d 793,
797 (1990).