Hughes v. Gentry, 443 S.E.2d 448 (Va. Ct. App. 1994). · Go Syfert
Hughes v. Gentry, 443 S.E.2d 448 (Va. Ct. App. 1994). Cases Citing This Book View Copy Cite
219 citation events (106 in the last 25 years) across 4 distinct courts.
Strongest positive: Philip Surles v. Kristan Mayer (vactapp, 2006-04-25)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Philip Surles v. Kristan Mayer (2×) also: Cited as authority (quoted)
Va. Ct. App. · 2006 · quote attribution · 2 verbatim quotes · confidence high
the effect of the separation of siblings must be and should be considered by a court during both the initial determination of custody and in subsequent determinations of change of custody.
examined Cited as authority (verbatim quote) Philip Surles v. Kristan Mayer and Marty Cullen, Jr. (2×) also: Cited as authority (quoted)
Va. Ct. App. · 2006 · quote attribution · 2 verbatim quotes · confidence high
the effect of the separation of siblings must be and should be considered by a court during both the initial determination of custody and in subsequent determinations of change of custody.
cited Cited as authority (rule) David Lamberti Botos v. Kara Shannon Burchinal Botos
Va. Ct. App. · 2022 · confidence medium
See Milam, 65 Va. App. at 451 ; Hughes v. Gentry, 18 Va. App. 318, 322 (1994).
discussed Cited as authority (rule) Shaneka L. Best, f/k/a Shaneka L. Montez v. Kevin D. Montez
Va. Ct. App. · 2019 · confidence medium
“Before evaluating whether to modify a [custody or visitation] decree, the court must find a material change in circumstances.” Wheeler v. Wheeler, 42 Va. App. 282, 289 (2004). “[T]he parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most recent custody award.” Hughes v. Gentry, 18 Va. App. 318, 322 (1994). “‘Changed circumstances’ is a broad concept and incorporates a broad range of positive and negative developments in the lives of the children.” Wheeler, 42 Va. App. at 289 (quoting Parish v. Spaulding, 26 Va. App.…
cited Cited as authority (rule) Sofia Khalid-Schieber, f/k/a Sofia Tanweer Hussain v. Haroon Hussain
Va. Ct. App. · 2019 · confidence medium
Hughes v. Gentry, 18 Va. App. 318, 323-24 (1994).
discussed Cited as authority (rule) Amanda Osborne Wooddell v. Harrisonburg-Rockingham Social Services District
Va. Ct. App. · 2016 · confidence medium
While it is true that the effect of the separation of siblings should be considered during a determination of custody, this consideration that is not “paramount to others.” Hughes v. Gentry, 18 Va. App. 318, 323-24 , 443 S.E.2d 448, 452 (1994).
discussed Cited as authority (rule) Timothy Wayne Wooddell, Jr. v. Harrisonburg-Rockingham Social Services District
Va. Ct. App. · 2016 · confidence medium
While it is true that the effect of the separation of siblings should be considered during a determination of custody, this consideration that is not “paramount to others.” Hughes v. Gentry, 18 Va. App. 318, 323-24 , 443 S.E.2d 448, 452 (1994).
discussed Cited as authority (rule) Justin B. Friedrichs v. Erica L. Brown
Va. Ct. App. · 2016 · confidence medium
In addition, “the parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most recent custody award.” Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994). 2.
cited Cited as authority (rule) Timothy M. Barrett v. Valerie Jill Rhudy Minor
Va. Ct. App. · 2015 · confidence medium
Hughes v. -9- Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994).
discussed Cited as authority (rule) Rubina Azam, f/h/a Rubina Miah v. Azhar Miah
Va. Ct. App. · 2014 · confidence medium
Mother contends there was insufficient evidence to support the trial court’s ruling. “[T]he parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most recent custody award.” Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994) (citations omitted).
discussed Cited as authority (rule) Shari Sims-Bernard v. Stephen P. Bernard
Va. Ct. App. · 2013 · confidence medium
Father responds that the change of circumstances supports the finding of sole custody to father. “[T]he parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most recent custody award.” Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994) (citations omitted).
discussed Cited as authority (rule) Betty L. Vermillion v. Kevin R. Vagt (2×)
Va. Ct. App. · 2013 · confidence medium
Vermillion neither adduced nor proffered any evidence of changed circumstances. 1 The correct date is December 10, 2009. 2 There is no transcript from this hearing; however, there is a written statement of facts. -2- On June 5, 2012, the trial court entered an order finding that there was no material change in circumstances since October 26, 2011 and denying Vermillion’s motion to modify custody and visitation. 3 ANALYSIS Material change of circumstances Vermillion argues that the trial court erred in determining that the order entered October 26, 2011 was the most recent custody award for d…
cited Cited as authority (rule) Kevin D. Jones v. Brenda F. Moody-Jones
Va. Ct. App. · 2012 · confidence medium
“On appeal, we review the evidence in the light most favorable to the prevailing party below.” Hughes v. Gentry, 18 Va. App. 318, 321-22 , 443 S.E.2d 448, 451 (1994).
discussed Cited as authority (rule) Bryan B. Brittain v. April J. Brittain
Va. Ct. App. · 2011 · confidence medium
So viewed, we acknowledge that “the parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most recent custody award.” Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994) (citations omitted).
discussed Cited as authority (rule) Ronnie Darin Watson v. Mironda Baker Watson
Va. Ct. App. · 2009 · confidence medium
Despite these deficiencies in the record, husband asks us to reverse a judgment that is within the sound discretion of the trial court, Hughes v. Gentry, 18 Va. App. 318, 326 , 443 S.E.2d 448, 453 (1994) (citing Morris v. Morris, 3 Va. App. 303, 307 , 349 S.E.2d 661, 663 (1986)), and which is presumed to be correct, Riggins v. O’Brien, 263 Va. 444, 448 , 559 S.E.2d 673, 675 (2002) (“recognizing the well-established principle that all trial court rulings come to an appellate court with a presumption of correctness”), without providing any indication that the trial court abused its discret…
cited Cited as authority (rule) Ramsey v. Harvey
Salem Cir. Ct. · 2008 · confidence medium
Hughes v. Gentry, 18 Va. App. 318, 321 (1994).
cited Cited as authority (rule) Rajan Jagannathan v. Valeria Shepeleva Jagannathan
Va. Ct. App. · 2008 · confidence medium
It’s not necessary. -4- Hughes v. Gentry, 18 Va. App. 318, 326 , 443 S.E.2d 448, 453 (1994).
cited Cited as authority (rule) Jeremey N. Place v. Candace M. Roach
Va. Ct. App. · 2007 · confidence medium
Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994).
discussed Cited as authority (rule) Sharon Kay Fisher v. James Ray Fisher, Jr.
Va. Ct. App. · 2006 · confidence medium
The principle is long standing that “[t]he decision whether to grant or deny a rehearing is within the trial court’s sound judicial discretion.” Hughes v. Gentry, 18 Va. App. 318, 326 , 443 S.E.2d 448, 453 (1994).
cited Cited as authority (rule) Philip G. True v. Kathryn G. True
Va. Ct. App. · 2004 · confidence medium
“The decision whether to grant or deny a rehearing is within the trial court’s sound judicial discretion.” Hughes v. Gentry, 18 Va. App. 318, 326 , 443 S.E.2d 448, 453 (1994).
discussed Cited as authority (rule) Bonnie J. Cooner v. Jason J. Cooner
Va. Ct. App. · 2004 · confidence medium
The parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances, Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994), and that the change in custody is appropriate for the welfare of the child.
discussed Cited as authority (rule) Pamella Lucille (Poe) Chavis v. Steven Jerome Chavi
Va. Ct. App. · 2004 · confidence medium
Trial Court’s Refusal to Rehear Evidence About the Time-Share “The decision whether to grant or deny a rehearing is within the trial court’s sound judicial discretion.” Hughes v. Gentry, 18 Va. App. 318, 326 , 443 S.E.2d 448, 453 (1994).
discussed Cited as authority (rule) Daphne Burke Ramsey, f/k/a v. Robert E. Clements
Va. Ct. App. · 2003 · confidence medium
The parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances, Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994), and that the change in custody is appropriate for the welfare of the child.
cited Cited as authority (rule) Sidney Everett Lovell, Jr v. Monica McGuire
Va. Ct. App. · 2003 · confidence medium
Hughes v. Gentry, 18 Va. App. 318, 321-22 , 443 S.E.2d 448, 450 (1994) (citation omitted).
discussed Cited as authority (rule) Rosa L Chittum v. Paula Kay Johnson (2×) also: Cited "see, e.g."
Va. Ct. App. · 2002 · confidence medium
As the party seeking to modify custody, Johnson bore the burden to prove: (1) there had been a material change of circumstances since the most recent custody award and (2) that a change in custody would be in the best interests of the child. - 5 - See Hughes v. Gentry, 18 Va. App. 318, 321 , 443 S.E.2d 448, 450-51 (1994) (citing Keel v. Keel, 225 Va. 606, 611 , 303 S.E.2d 917, 921 (1983)).
discussed Cited as authority (rule) Carlton Conley v. Larry Chittum (2×) also: Cited "see, e.g."
Va. Ct. App. · 2002 · confidence medium
As the party seeking to modify custody, Johnson bore the burden to prove: (1) there had been a material change of circumstances since the most recent custody award and (2) that a change in custody would be in the best interests of the child. - 5 - See Hughes v. Gentry, 18 Va. App. 318, 321 , 443 S.E.2d 448, 450-51 (1994) (citing Keel v. Keel, 225 Va. 606, 611 , 303 S.E.2d 917, 921 (1983)).
discussed Cited as authority (rule) Sullivan v. Knick
Va. Ct. App. · 2002 · confidence medium
Moreover, "whenever the evidence suggests ... that the relocation of the custodial parent may not be in the child's best interests, the relocation of the custodial parent constitutes a material change in circumstances.” Hughes v. Gentry, 18 Va.App. 318, 322 , 443 S.E.2d 448, 451 (1994).
cited Cited as authority (rule) Goodhand v. Kildoo
Va. Ct. App. · 2002 · confidence medium
Hughes v. Gentry, 18 Va.App. 318, 326 , 443 S.E.2d 448, 453 (1994). 5 .
cited Cited as authority (rule) Laurie Arsenault v. Isle of Wight County DSS
Va. Ct. App. · 2001 · confidence medium
ANALYSIS "The decision whether to grant or deny a rehearing is within the trial court's sound judicial discretion." Hughes v. Gentry, 18 Va. App. 318, 326 , 443 S.E.2d 448, 453 (1994).
discussed Cited as authority (rule) Cloutier v. Queen
Va. Ct. App. · 2001 · confidence medium
(Emphasis added.) “The burden is on the moving party to show a right to the relief sought.” Hughes v. Gentry, 18 Va.App. 318, 326 , 443 S.E.2d 448, 453 (1994) (citing Holmes v. Holmes, 7 Va.App. 472, 482 , 375 S.E.2d 387, 393 (1988)).
discussed Cited as authority (rule) Ken R. Gallahan v. Linda Flood
Va. Ct. App. · 2000 · confidence medium
The trial court applies a two-pronged test: "(1) whether there has been a change of circumstances since the most recent custody award; and (2) whether such a change would be in the best interests of the child." Hughes v. Gentry, 18 Va. App. 318, 321 , 443 S.E.2d 448, 450 (1994) (citing Keel v. Keel, 225 Va. 606, 611 , 303 S.E.2d 917, 921 (1983)).
cited Cited as authority (rule) John R. Zampolin v. Mary Elizabeth Barnum Hicks
Va. Ct. App. · 1999 · confidence medium
See also Parish v. Spaulding, 257 Va. 357 , 513 S.E.2d 391 (1999); Hughes v. Gentry, 18 Va. App. 318, 321 , 443 S.E.2d 448, 450-51 (1994).
examined Cited as authority (rule) Barton v. Barton (4×)
Va. Ct. App. · 1999 · signal: cf. · confidence medium
Cf. Hughes v. Gentry, 18 Va.App. 318, 325 , 443 S.E.2d 448, 453 (1994) (prejudice to moving party outweighed where he “has failed to act diligently in discovering [relevant] evidence or, ..., has withheld evidence for personal or tactical reasons”).
discussed Cited as authority (rule) Richard B.Schoonover v. Petula Lee Green Schoonover
Va. Ct. App. · 1999 · confidence medium
As the party seeking to modify custody, mother bore the burden to prove "(1) whether there has been a change of * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. circumstances since the most recent custody award; and (2) whether such a change would be in the best interests of the child." Hughes v. Gentry, 18 Va. App. 318, 321 , 443 S.E.2d 448, 450-51 (1994) (citing Keel v. Keel, 225 Va. 606, 611 , 303 S.E.2d 917, 921 (1983)).
discussed Cited as authority (rule) Elton Lee Miller, Jr. v. Daphyne Lynn Miller
Va. Ct. App. · 1999 · confidence medium
In assessing whether a change in custody is warranted, a trial court applies a two-pronged test: "(1) whether there has been a change of circumstances since the most recent custody award; and (2) whether such a change would be in the best interests of the child." Hughes v. Gentry, 18 Va. App. 318, 321 , 443 S.E.2d 448, 450 (1994) (citing Keel v. Keel, 225 Va. 606, 611 , 303 S.E.2d 917, 921 (1983)).
discussed Cited as authority (rule) Nora H. Burgan v. Ezzat Zein
Va. Ct. App. · 1999 · confidence medium
“The trial court’s - 3 - decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it.” Hughes v. Gentry, 18 Va. App. 318, 321-22 , 443 S.E.2d 448, 451 (1994) (citations omitted).
discussed Cited as authority (rule) Nora H. Burgan v. Ezzat Zein
Va. Ct. App. · 1999 · confidence medium
“The trial court’s - 3 - decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it.” Hughes v. Gentry, 18 Va. App. 318, 321-22 , 443 S.E.2d 448, 451 (1994) (citations omitted).
discussed Cited as authority (rule) Parish v. Spaulding (2×)
Va. · 1999 · confidence medium
See Bottoms v. Bottoms, 249 Va. 410, 413 , 457 S.E.2d 102, 104 (1995); James v. James, 230 Va. 51, 53 , 334 S.E.2d 551, 553 (1985); Gray, 228 Va. at 698 , 324 S.E.2d at 678 ; Keel v. Keel, 225 Va. 606, 610 , 303 S.E.2d 917, 920 (1983); Bostick v. Bostick-Bennett, 23 Va. App. 527, 533 , 478 S.E.2d 319, 322 (1996); Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994).
examined Cited as authority (rule) Sarah L. Humphries v. Charles M. Davis, II (3×) also: Cited "see"
Va. Ct. App. · 1998 · confidence medium
As the party seeking to change custody, mother bore the burden to prove "(1) whether there has been a change of circumstances since the most recent custody award; and (2) whether such a change would be in the best interests of the child." Hughes v. Gentry, 18 Va. App. 318, 321 , 443 S.E.2d 448, 450-51 (1994) (citing Keel v. Keel, 225 Va. 606, 611 , 303 S.E.2d 917, 921 (1983)).
examined Cited as authority (rule) Penny Carter v. Joan Brown (6×) also: Cited "see"
Va. Ct. App. · 1998 · confidence medium
Hughes v. Gentry, 18 Va. App. 318, 322 , 443 S.E.2d 448, 451 (1994).
cited Cited as authority (rule) Vissicchio v. Vissicchio
Va. Ct. App. · 1998 · confidence medium
Hughes v. Gentry, 18 Va.App. 318, 321-22 , 443 S.E.2d 448, 451 (1994) (citing Peple v. Peple, 5 Va.App. 414, 422 , 364 S.E.2d 232, 237 (1988)).
discussed Cited as authority (rule) Thomas C. Shooltz v. Jane Hoffman Shooltz
Va. Ct. App. · 1998 · confidence medium
In addition to considering newly discovered evidence and legal error as the primary bases for the exercise of discretion in reopening a hearing, see, e.g., Wells Fargo Alarm Servs., Inc. v. Virginia Employment Comm’n, 24 Va.App. 377, 386 , 482 S.E.2d 841, 845 (1997); Hughes v. Gentry, 18 Va.App. 318, 326 , 443 S.E.2d 448, 453 (1994) (citing Holmes v. Holmes, 7 Va.App. 472, 482 , 375 S.E.2d 387, 393 (1988)), Virginia courts have also included among the factors to be applied in the analysis whether a party seeking rehearing had "ample opportunity to *270 present evidence” at the initial hear…
discussed Cited as authority (rule) Jane Hoffman Shooltz v. Thomas C. Shooltz
Va. Ct. App. · 1998 · confidence medium
In denying the motion to reopen, the court erroneously concluded that the provisions of Code § 20-107.3(A) abrogated the court's discretionary power and confined its review of the issue to the 2 date of the initial evidentiary hearing. 1 In addition to considering newly discovered evidence and legal error as the primary bases for the exercise of discretion in reopening a hearing, see, e.g., Wells Fargo Alarm Servs., Inc. v. Virginia Employment Comm'n, 24 Va. App. 377, 386 , 482 S.E.2d 841, 845 (1997); Hughes v. Gentry, 18 Va. App. 318, 326 , 443 S.E.2d 448, 453 (1994) (citing Holmes v. Holmes…
examined Cited as authority (rule) Laura C. Panner v. Benjamin D. Sillmon (3×) also: Cited "see"
Va. Ct. App. · 1998 · confidence medium
It is well established that a trial court should grant a motion for a change in child custody only if the moving party proves both (1) that a "change in circumstances" has occurred since the most recent custody award and (2) that a change in custody would be in the "best interests of the child." See Hughes v. Gentry, 18 Va. App. 318, 321 , 443 S.E.2d 448, 450-51 (1994) (citing Keel v. Keel, 225 Va. 606, 611 , 303 S.E.2d 917, 921 (1983)).
cited Cited as authority (rule) William Stewart v. Alice Despart, f/k/a A. Stewart
Va. Ct. App. · 1998 · confidence medium
Hughes v. Gentry, 18 Va. App. 318, 321-22 , 443 S.E.2d 448, 451 (1994).
discussed Cited as authority (rule) Thurmond v. Gropper
Richmond County Cir. Ct. · 1998 · confidence medium
Generally, a court that is determining whether a change in custody is warranted “applies a two-part test: (1) whether there has been a change in circumstances since the most recent custody award; and (2) whether a change [in custody] would be in the best interests of the child.” Hughes v. Gentry, 18 Va. App. 318, 321 (1994) (citation omitted).
examined Cited as authority (rule) Parish v. Spaulding (3×) also: Cited "see"
Va. Ct. App. · 1998 · confidence medium
Our decision in Scinaldi v. Scinaldi, 2 Va.App. 571, 572-73 , 347 S.E.2d 149, 150 (1986), as further clarified in Hughes v. Gentry, 18 Va.App. 318, 322 , 443 S.E.2d 448, 451 (1994), supports our conclusion that a change *572 in the location of the children effected by the petitioning parent does not bar the jurisdictional finding that a material change of circumstances has taken place.
discussed Cited as authority (rule) Terry R. Rychlik v. Jeanette Riffe
Va. Ct. App. · 1998 · confidence medium
In assessing whether a change in custody is warranted, a trial court applies a two-pronged test: "(1) whether there has been a change of circumstances since the most recent custody award; and (2) whether such a change would be in the best interests of the child." Hughes v. Gentry, 18 Va. App. 2 318, 321, 443 S.E.2d 448, 450 (1994) (citing Keel v. Keel, 225 Va. 606, 611 , 303 S.E.2d 917, 921 (1983)).
discussed Cited as authority (rule) Lewis H. Clementson v. Nancy Taylor Clementson, etc
Va. Ct. App. · 1997 · confidence medium
"The trial court's decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it." Hughes v. Gentry, 18 Va. App. 318, 321-22 , 443 S.E.2d 448, 451 (1994).
discussed Cited as authority (rule) Maria J. Lang v. Michael A. Lang
Va. Ct. App. · 1997 · confidence medium
"On appeal, we review the evidence in the light most favorable to the prevailing party below. 'The trial court's * Pursuant to Code § 17-116.010 this opinion is not designated for publication. decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to support it.'" Hughes v. Gentry, 18 Va. App. 318, 321-22 , 443 S.E.2d 448, 451 (1994) (citations omitted).
Retrieving the full opinion text from the archive…
Deborah K. Gentry Hughes
v.
William W. Gentry
Record No. 2015-92-2.
Court of Appeals of Virginia.
May 3, 1994.
443 S.E.2d 448
1994 Va. App. LEXIS 258
Counsel, Thomas F. Coates, III (Coates & Davenport, on brief), for appellant., Stuart R. Kaplan (Jane Chittom; Catlett & Kaplan; Shuford, Rubin & Gibney, on brief), for appellee., (Russell E. Allen, guardian ad litem for Brandon Gentry, a minor).
Koontz, Benton.
Cited by 85 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: bottom 67%
Citer courts: Court of Appeals of Virginia (2)

Lead Opinion

[*320] Opinion

KOONTZ, J.

Deborah K. Gentry Hughes (Hughes) appeals an order of the Circuit Court of Henrico County transferring custody of her son, Brandon Gentry (Brandon), to William W. Gentry (Gentry), Hughes’s former husband and Brandon’s natural father. Hughes was awarded custody of Brandon following the couple’s separation. Gentry petitioned the court for a change of custody after Hughes and her new husband indicated that they intended to relocate outside Virginia. The chancellor ruled that a change in circumstances warranting a review of custody had occurred and that the best interests of the child required a change of custody.

In this appeal, Hughes argues that the chancellor erred in finding a sufficient change of circumstances and that he further erred in determining that the best interests of the child warranted a change of custody. Hughes also appeals the denial of her post-hearing motion to reconsider based on additional evidence. For the reasons that follow, we affirm the chancellor’s rulings.

I.

FACTUAL BACKGROUND

Hughes and Gentry married in 1981 and divorced in 1989. The couple had one child, Brandon, and Gentry adopted Hughes’s other son, Maynard, during the marriage. After the couple separated, custody of both children was awarded to Hughes, who subsequently remarried. Two daughters were born during this subsequent marriage. Gentry requested and received from the court liberal visitation rights with both Brandon and Maynard. He has subsequently terminated his relationship with Maynard.

The record reflects that following the entry of the final decree of divorce, Hughes and Gentry engaged in an acrimonious and combative exchange of motions and petitions in the courts over matters of visitation, support and custody. In January 1992, Hughes informed Gentry by letter that she and her husband would be relocating out of state “in the near future.” Gentry then petitioned the Juvenile and Domestic Relations District Court of Hanover County (where Hughes then resided) for a change of custody. Following a hearing on the motion, a judge of that court ordered a change of custody. Hughes appealed the order of the juvenile court to the Circuit Court of Henrico County, the court[*321] of jurisdiction in the original divorce action.

In a de novo hearing, the chancellor heard testimony from the parties, various relatives, other lay witnesses and two expert witnesses. Gentry and his current wife testified that Hughes had interfered with Gentry’s visitation with Brandon. Hughes denied these allegations.

Barbara Witherow, LPC (Witherow), testified for Gentry. Witherow indicated that Brandon felt freer to express his emotions for both parents when he resided with his father. William Lordi, M.D. (Lordi), testified for Hughes. Lordi stated that the relocation would not be against Brandon’s best interests. Lordi felt that siblings should not be separated. The chancellor also received a report from the court’s social worker and heard arguments from the parties and Brandon’s guardian ad litem.

After receiving recommendations for visitation from the parties and the guardian ad litem, the chancellor by letter opinion awarded custody of Brandon, who had resided with his father following the juvenile court hearing, to Gentry. In response to the letter opinion, Hughes filed a motion to reconsider. An order reflecting the ruling of the letter opinion was entered on August 28, 1992. Hughes again moved the court to reconsider its ruling, alleging in a supporting memorandum and affidavit that she was now prepared to bring evidence before that court that Gentry had raped her following their separation. Gentry denied these allegations by affidavit. The chancellor, considering the evidence on the record, denied the motion to reconsider.

II.

CHANGE OF CIRCUMSTANCES WARRANTING REVIEW OF CUSTODY

The trial court may “revise and alter such decree concerning the care, custody and maintenance of the children and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children may require.” Code § 20-108. In determining whether a change in custody is warranted, the trial court applies a two-part test: (1) whether there has been a change of circumstances since the most recent custody award; and (2) whether such a change would be in the best interests of the child. Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983). On[*322] appeal, we review the evidence in the light most favorable to the prevailing party below. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). “The trial court’s decision, when based upon an ore tenus hearing, is entitled to great weight and will not be disturbed unléss plainly wrong or without evidence to support it.” Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986).

In acknowledging this standard of review, however, we also recognize that the parent seeking to obtain a transfer of custody bears the burden to show a change in circumstances following the most recent custody award. See Keel, 225 Va. at 611, 303 S.E.2d at 921; Turner v. Turner, 3 Va. App. 31, 34, 348 S.E.2d 21, 22 (1986). This rule advances the obvious benefits of providing stability in the life of the child whose custody is the subject of the conflict between the parents. Peple, 5 Va. App. at 421, 364 S.E.2d at 237.

Here, Hughes contends that the chancellor based his ruling on her impending departure from the state, and that this fact, in itself, does not constitute a change of circumstances warranting a review of custody. We disagree.

It is well settled law that a court may forbid a custodial parent from removing a child from the state without the court’s permission, Carpenter v. Carpenter, 220 Va. 299, 302, 257 S.E.2d 845, 847 (1979), or it may permit the child to be removed from the state. Gray v. Gray, 228 Va. 696, 698-99, 324 S.E.2d 677, 678 (1985) ; Simmons v. Simmons, 1 Va. App. 358, 364, 339 S.E.2d 198, 201 (1986). In making such a determination, the court determines whether the relocation would be in the child’s best interest. Scinaldi v. Scinaldi, 2 Va. App. 571, 573, 347 S.E.2d 149, 150 (1986) . The inescapable inference of Scinaldi is that whenever the evidence suggests, as it does here, that the relocation of the custodial parent may not be in the child’s best interests, the relocation of the custodial parent constitutes a material change of circumstances. See Wilson v. Wilson, 12 Va. App. 1251, 1255, 408 S.E.2d 576, 579 (1991).

Moreover, the record reflects that Hughes’s pending relocation was not the sole factor considered by the chancellor in his determination that a change of circumstances had occurred. During the closing argument, the chancellor engaged Gentry’s counsel in a[*323] brief dialogue concerning the change in circumstances requirement. From that discussion, it is clear that the chancellor considered not merely the fact of the relocation, but its effect on Brandon. The chancellor also noted that Gentry’s remarriage further supported finding a change in circumstances.

Accordingly, we find that the record, when viewed in the light most favorable to the party prevailing below, supports the chancellor’s determination that a change in circumstances had occurred sufficient to warrant further consideration and determination of whether a change of custody would be in the best interests of the child.

III.

DETERMINATION OF THE “BEST INTERESTS OF THE CHILD”

The second prong of the test found in Keel, the best interests of the child, is the greater concern of the two. Visikides v. Derr, 3 Va. App. 69, 71, 348 S.E.2d 40, 41 (1986). Hughes contends that the chancellor erred in determining that Brandon’s best interests would be served by a change of custody so that he might remain in Virginia with his father. Hughes’s principal argument is that Brandon’s best interests are not served by separation from his half-siblings.

In support of this argument, Hughes relies on Hepler v. Hepler where our Supreme Court said, “Where it is reasonably possible, brothers and sisters of tender years should be reared together, and have the full benefit of natural ties of affection and interest that such association develops.” 195 Va. 611, 623, 79 S.E.2d 652, 659 (1954). Hughes urges us to adopt a “compelling cause” test that would give paramount status to the effect of the separation of siblings on a determination of custody.

We agree that the effect of the separation of siblings must be and should be considered by a court during both the initial determination of custody and in subsequent determinations of change of custody. See Hepler, 195 Va. at 623, 79 S.E.2d at 659; Smith v. Pond, 5 Va. App. 161, 165, 360 S.E.2d 885, 887-88 (1987). Nonetheless, there is no support for the contention that[*324] this consideration is paramount to others.[1] In Doane v. Doane, 330 So. 2d 753 (Fla. Dist. Ct. App. 1976), a case cited by Hughes, and in other cases using similar language, it is clear that a “compelling cause” is necessary to separate siblings only where it is not otherwise in the best interests of the individual child to be placed in separate custody. See Brown v. Brown, 409 So. 2d 1133, 1134 (Fla. Dist. Ct. App. 1982) (“the principle of non-separation ‘is not absolute and is subject to a determination as to what custody arrangement would be best for the (individual) child.’ ” (citation omitted)); In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981) (court ordinarily tries to keep siblings together, but will not do so if the best interests of the child dictate otherwise). This is the view this Court took in Smith, where a third party custody award was overturned because there was no showing that it was in the best interest of the child to be in the custody of the third party, rather than to remain with her parents and siblings. Smith, 5 Va. App. at 165, 360 S.E.2d at 887-88.

Having determined that the chancellor did not err in giving no special weight to the effect of separating Brandon from his half-siblings, there remains the question of whether the chancellor erred in his overall determination that a change of custody was in Brandon’s best interest. The record shows that each of the experts considered Brandon to be a well adjusted child with a natural affection for both Hughes and Gentry, as well as for their respective spouses. Nonetheless, whereas Lordi stated only that a relocation would not be contrary to Brandon’s best interests, Witherow stated unequivocally that Brandon was happier and better able to relate to both Hughes and Gentry when he resided with Gentry. We accord deference to the chancellor in weighing such testimony because he was in a better position to hear and observe the witnesses.

In addition, despite Hughes’s assurance that she would assist Gentry in defraying the cost of travel that would be required for[*325] visitation, the record suggests that she has in the past had difficulty abiding by the court-ordered visitation schedule. The chancellor was clearly of the opinion that both Hughes and Gentry were using Brandon as a pawn in their continuing conflict. In his letter opinion, the chancellor renewed his appeal to Hughes and Gentry to put aside their differences for Brandon’s sake.

Thus, the chancellor relied both on expert testimony and the past history of the parties in determining, in accord with the provisions of Code § 20-107.2, that Brandon’s best interests, notwithstanding the separation from his half-siblings, were served by a transfer of custody from Hughes to Gentry. There being ample evidence in the record to support that decision, we will not supplant the chancellor’s judgment with our own. See Amburn v. Amburn, 13 Va. App. 661, 664, 414 S.E.2d 847, 849 (1992).

IV.

MOTION TO RECONSIDER FOR ADDITIONAL EVIDENCE

Following the unfavorable result, Hughes sought to reopen the question of change of custody, asserting that she wished to present additional evidence showing that Gentry was an unfit parent.[2] We begin by noting that in matters of child custody, “finality [of the custody decision] is only one of the factors used in determining a child’s best interests. Since circumstances affecting a child’s best interests may change periodically, finality is not a paramount consideration.” Accomack County Dep’t of Social Servs. v. Muslimani, 12 Va. App. 220, 225, 403 S.E.2d 1, 3 (1991). In Muslimani, this Court rejected the assertion that a motion to reopen a custody determination for additional evidence should be treated the same as a motion for a new trial in light of after-discovered evidence. We found that the best interests of the child may outweigh the prejudice which results to the opposing party where the moving party has failed to act diligently in discovering evidence or, as in this case, has withheld evidence for personal or tactical reasons. Id.

[*326] The decision whether to grant or deny a rehearing is within the trial court’s sound judicial discretion. See Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986). Although the chancellor considered the motion on submitted documents only, he implicitly did so with the benefit of the credibility determinations made during the prior ore tenus hearing. Accordingly, the chancellor is owed deference, and we will consider the matter in that light.

Hughes’s allegations were unsubstantiated and were denied by Gentry point by point. Although Hughes asserted in her affidavit that she could corroborate her allegations, she failed to do so. Moreover, the motion did not allege the discovery of new evidence not known or accessible to Hughes before the former hearing and pointed out no error upon the face of the record. The burden is on the moving party to show a right to the relief sought. Holmes v. Holmes, 7 Va. App. 472, 482, 375 S.E.2d 387, 393 (1988). Accordingly, we cannot say that the chancellor abused his discretion in denying the motion.

For the foregoing reasons, the orders of the circuit court transferring custody of Brandon from Hughes to Gentry and denying the motion to reopen that matter are affirmed.

Affirmed.

Willis, J., concurred.

1

We note that while most states list factors to be considered in determining an award of custody similar to those found in Code § 20-107.2, no state specifically includes relationship with siblings among those factors. Rather, the effect of separation of siblings is a factor judicially inferred from the provisions of the statute. See, e.g., In re Marriage of Kurth, 438 N.W.2d 852, 854 (Iowa Ct. App. 1989) (referring to the “strong interest in keeping children of broken homes together”). By way of contrast, many states’ statutes list separation of siblings as a factor in determining foster care placement. See, e.g., Fla. Stat. Ann. § 39.45 (West 1993); N.M. Stat. Ann. § 32A-4-22 (Michie 1993).

2

Hughes also asserted in her motion that the failure to appoint a guardian ad litem for her son Maynard (Brandon’s half-brother and Gentry’s adoptive son) prejudiced his rights and required reopening of the matter. This claim is not argued on appeal, and, accordingly, we do not address its merits.

Dissent

Benton, J.,

dissenting.

I agree that the evidence proved that the mother’s move from Virginia may be a material change in circumstances. See Wilson v. Wilson, 12 Va. App. 1251, 1255, 408 S.E.2d 576, 579 (1991). The record did not establish, however, that the mother’s move to Wisconsin for economic reasons justified a change in custody because it would be in the best interest of the child. See Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983).

The trial judge gave no reason for his conclusion that the child’s best interest warranted a change in custody. Therefore, this Court is not in the position to review whether the trial judge properly reasoned his way to a permissible conclusion; instead, we are forced to examine the record for evidence upon which the trial judge possibly could have properly reasoned his way to a permissi[*327] ble conclusion. The difference is more than semantic. The Code of Virginia invests the trial judge with the discretion to weigh the relevant factors in determining child custody. D’Auria v. D’Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 168 (1986). If, however, the trial judge does not explain in any fashion the reasoning or factors that led to a particular conclusion, review of the trial judge’s decision is limited to this Court’s after-the-fact speculation about what the trial judge might have reasoned in arriving at a conclusion. See Woolley v. Woolley, 3 Va. App. 337, 344, 349 S.E.2d 422, 426 (1986) (“When ... the chancellor fails to state any basis for a . . . conclusion, the reviewing court is hindered in its task”). Such a review may ultimately focus on the propriety of a weighing or reasoning process that the trial judge never actually undertook. As a consequence, the effect of the trial judge’s failure to place his reasoning on the record is to place the trial judge’s decision beyond review.

That result is not what I understand the phrase “sound discretion of the trial judge” to imply. Indeed, were that the result, we could never ascertain if a trial judge had abused his discretion. Any fact in evidence that offered some theoretical support for the decision could be given significant weight by the reviewing court even if the trial judge had ignored that fact in reaching his or her conclusion.

The testimony proved that the child was well adjusted, interacted well with both his parents, and would suffer no harm by relocation to Wisconsin. The trial judge made no finding and stated no view regarding Dr. Lordi’s testimony, the child and family psychiatrist who interviewed the child and both parents. The record gives no indication that the trial judge even considered what effect being separated from his siblings might have upon the child.

“Where it is reasonably possible, brothers and sisters of tender years should be reared together, and have the full benefit of natural ties and affection and interest that such association develops.” Hepler v. Hepler, 195 Va. 611, 623, 79 S.E.2d 652, 659 (1954). Dr. Lordi testified that the child has positive feelings toward both parents, that both parents demonstrate appropriate parenting skills, and that the relocation of the child to Wisconsin would not be harmful to the child. Additionally, however, the psychiatrist testified that the child should not be separated from his brother[*328] and his sisters, with whom he has a very close bond.

No evidence in this record suggests that the best interest of this child required a change in custody. Moreover, nothing in this record suggests that anything in this child’s best interest outweighed the harm he will experience from severing the bond with his siblings. As it stands now, we cannot know the trial judge’s actual findings or reasoning, and we are left to speculate about the trial judge’s findings. I would reverse the decision.

I, therefore, dissent.