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Lane v. Lane

Court of Appeals of Virginia

May 20, 1997

ADRIENNE H. LANE
v.
JAMES SIROIS LANE

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY. Arthur B. Vieregg, Jr., Judge.

(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.

Present: Judges Bray, Annunziata and Overton.

MEMORANDUM OPINION [*]

PER CURIAM

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. 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).

I.

Among the factors to be considered by a court determining the best interests of a child is " 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." 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 [father].

The court found Jonathan's testimony to be " consistent with a young man who does not wish to disappoint those who have an ...


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