Donald Stockdale (“father”) appeals from the decision of the Circuit Court of Fairfax County allowing his former wife, Patricia M. Stockdale (“mother”), to relocate to New Jersey with the parties’ minor children. Father contends the trial court erred by placing on father the burden of proving substantial impairment to his relationship with the children if mother moved them to New Jersey. For the reasons which follow, we affirm the decision of the trial court.
*181 FACTS
“We review the evidence in the light most favorable to [mothеr], the party prevailing below and grant all reasonable inferences fairly deducible therefrom.”
Anderson v. Anderson,
On November 3, 1998, still pending a final decree in the matter, mother petitioned the court to permit her to move with thе children to New Jersey. Father filed no response to mother’s petition. On June 21 and 22, 1999, a hearing on custody of the children was held. At this time, father filed a brief opposing mother’s petition for relocation. Although the purpose of the hearing was to decide which party was to have custody of the children, the proceedings focused primarily on the issue of relocation, because the parties stipulated at the beginning of the hearing that mother’s physical custody would not be challenged.
At the conclusion of the hearing, the court granted mother’s petition for relocation and granted her sole legal and physical custody of the children. In reaching its decision, the court was guided by the factors set forth in Code § 20-124.3 1 for *182 assessing the best interеsts of the children. The court found that the children’s best interests dictated that mother be permitted to remove them to New Jersey.
On July 2, 1999, father filed a petition for reconsideration. Father contended that, in the prior hearing, the court had erroneоusly placed on him the burden of proving that the children’s relocation would not be in their best interest. The court heard oral argument on July 23, 1999, and took the matter under advisement. No new evidence was introduced at the oral argument. On August 20, 1999, the court denied fаther’s motion to modify the court’s order allowing mother to relocate with the children. In its oral opinion, the court stated that since the July 23, 1999 hearing it had “used the time” to “get the legal framework straight” and that it was “now satisfied ... that the burden of proof [on the issue of relocation] is on the moving party. It’s on the [mother] to prove that the move to New Jersey would be in the best interests of the children.” The court further found that, “[h]aving determined that the burden is on the [mother] as the moving party to prove what’s in the best interеsts of the children ... the *183 [mother] has carried that burden by a preponderance of the evidence, which is the standard.” The court further stated that it “was particularly influenced [in allowing mother to relocate with the children] by the factors in [Code §] 20-124.3” and that among these, the relationship between the children and each parent, the needs of the children, and the role each parent has played in the children’s lives were particularly important in deciding the case. Accordingly, the cоurt again authorized mother to take the children to New Jersey.
The court also found that
the husband has not proven by a preponderance of the evidence that the benefits of a beneficial relationship between himself and the children would be substantially impairеd if the children were moved to New Jersey.... I can’t say, given the testimony I have on this record, that the relationship would be substantially impaired____ [According to what I see in the case law, that’s the standard____ That is his burden on that particular issue, and I find that he has not рroven by a preponderance of the evidence that there would be substantial impairment.
It is this statement which forms the basis of father’s claim of error.
An order embodying the trial court’s ruling was entered on September 16,1999. A final decree of divorce was entered on November 19, 1999, incorporating the September 16, 1999 order. This appeal followed.
ANALYSIS
“A court may forbid a custodial parent from removing a child from the state without the court’s permission, or it may permit the child to be removed from thе state.”
Scinaldi v. Scinaldi
“In every judicial proceeding ... the ‘burden of proof is allocated.”
City of Hopewell v. Tirpak,
The phrase “burden of proof’ refers to two related but distinct concepts: (1) the “burden of production,” which is the obligation to make a prima facie case, i.e., to introduce evidence sufficient as a matter of law to enable a rational fаct finder to find that a particular proposition of fact is true and (2) the “burden of persuasion,” which is the obligation to introduce evidence that actually persuades the fact finder, to the requisite degree of belief, that a particular рroposition of fact is true.
Id.
at 113-14,
In the present case, father contends the trial court erred by imposing upon him the burden of persuasion on a particular issue, viz. whether his relationship with his children would be “substantially impaired” by allowing mother to move them to New Jersey. He argues that mother, as the moving party, had the burden to prove that the relocation would not substantially impair that relationship. We agree.
As we stated in
Bostick,
“the moving party bears the burden of proof.”
*185 However, as father points out, the court alsо stated that it found
the [father] has not proven by a preponderance of the evidence that the benefits of a beneficial relationship between himself and the children would be substantially impaired if the children were moved to New Jersey.... According to what I see in the case law, that’s the standard he has to [satisfy]. That is his burden on that particular issue, and I find that he has not proven by a preponderance of the evidence that there would be substantial impairment.
(Emphasis added). The trial court apparently derived from
Scinaldi
the view that father was required to prove by a preponderance of the evidence that a “substantial impairment” of his relationship with the children would result from their removal from Virginia.
See 2
Va.App. at 575,
We find the court’s error harmless, however. ‘When it plainly appears from the record and the evidence given at trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be ... reversed ... [f]or any ... error committed on the trial.” Code § 8.01-678;
see Lavinder v. Commonwealth,
[W]here a burdened party has presented evidence [sufficient to establish a prima facie case], the burden of proof is no *186 longer relevant and the fact finder must decide which party prevails based on the weight of the evidence. In such а situation, a misallocation of the burden of proof will be considered harmless error.
Erie Ins. Co./Erie Ins. Exchange v. Flood,
The trial court found that mother met her burden of proving that removal of the children to New Jersey would serve their best interests. In particular, the court cited evidence of the quality of the schools in the community to which she planned to move; the generally good environment the community would provide; the nature of the relationship between the children and each parent, including the fact that mother was the primary caregiver for the children; the children’s needs, given their young ages; the improvement of mother’s ability to provide for thе children financially that would result from the relocation; and the role each parent has played and would continue to play in the children’s lives. The court found that, on balance, mother “carried [her] burden by a preponderance of the evidence, which is the standard. It’s whatever’s over 50 percent. And ... I believe that she ... prove[d] that” the relocation would serve the best interests of the children. “The decree of the [c]hancellor determining questions of fact on conflicting еvidence
ore tenus
has the weight of a jury verdict, and will be permitted to stand unless plainly wrong or without evidence to support it.”
Carpenter v. Carpenter,
Moreover, father presented no evidence to сontrovert the mother’s evidence that his relationship with the children would not be substantially impaired. Indeed, father presented no evidence at all.
See Redford v. Booker,
For the reasons stated, we affirm thе trial court’s decision.
Affirmed.
Notes
. Code § 20-124.3 enumerates the following factors to be weighed in assessing the best interests of children in custody and visitation disputes:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
*182 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 whiсh 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, the relative willingness and demоnstrated 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;
7. The reasonable prefеrence of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
8. Any history of family abuse as that term is defined in § 16.1-228; and
9. Such other factors as the court deems necessary and proper to the determination.