Children - § 3-2 (A)(3) - § 3-2 (C)(1)

              (3)  Legitimacy

              (4)  Tender Years

              (5)  Wishes of the Child

2013--- Sims-Bernard v. Bernard, Va. Ct. of Appeals, Unpublished, No. 2090-12-2
The minor children of the parties, who were twelve and thirteen at the time of hearing, testified that they wished to live with their mother. While the court should consider and give appropriate weight to the wishes of a child who has reached the age of discretion, the preference of the child is not controlling. The trial court, which properly considered and weighed the children’s preference to live with their mother, did not abuse its discretion by awarding primary physical custody to the children’s father.

2011--- Gudino v. Gudino, Va. Ct. of Appeals, Unpublished, No. 0068-11-2
Though the trial court’s finding that the children preferred to live with their father was without evidence on the record to support it, the error was harmless, because nothing in the record suggested that that factor was pivotal to the trial court’s custody decision.

1999--- Brown v. Brown, 30 Va. App. 532
Trial court did not err in refusing to award mother sole or joint legal custody or to prohibit home-schooling of children simply because the children expressed a preference to attend public school. Although a child’s preference should be considered and given appropriate weight, it does not control custody determinations and is merely a factor to be considered.

  (B)  Divided Custody

1954--- Hepler v. Hepler, 195 Va. 611
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.

  (C)  Third Parties

      1.  Custody

2015--- Smith v. Smith, Va. Ct. of Appeals, Unpublished, No. 0695-15-2
The trial court properly denied Mother’s motion to amend custody based on paternity tests which revealed that Father was not the biological father of the children.  In this case, Father was the only father the children had ever known, was listed as father on their birth certificates, and had had primary custody of the children for years.  The trial court properly found that this evidence overcame the statutory presumption in favor of biological parents and properly continued the existing custody arrangements.

2011--- Gibson v. Kappel, Va. Ct. of Appeals, Unpublished, No. 0180-11-4
The trial court did not err in finding the evidence sufficient for a child’s grandparents to overcome mother’s natural parent presumption, and did not err in finding that the best interests of the child warranted custody to the grandparents. The court noted that while the mother was not unfit, she demonstrated significant lapses in judgment and an inconsistent ability to address the child’s physical and emotional needs. While not having voluntarily relinquished parental rights, she had nonetheless abdicated responsibility for the day-to-day care of the child to the paternal grandparents over a number of years. With regard to the best interests of the child, the court noted that “it is not desirable to create a potential for a power struggle by implementing a custodial arrangement that is premised on cooperation and communication where so little currently exists…sole legal custody is required…to minimize the impact of the parties’ resentments, behavior, and conduct on the child.”

2011--- Buffington v. Bates, Va. Ct. of Appeals, Unpublished No. 0771-11-4
The trial court did not err in granting custody to the child’s grandparents, finding that the child’s grandparents rebutted the parental presumption accorded to the mother. Evidence revealed that the mother was unfit, had difficulty in creating and maintaining stable home environments and interpersonal relationships, and had poor judgment and reasoning. Furthermore, the mother had voluntarily relinquished custody of the child to the grandparents on two previous occasions, once for three months, and once for an indefinite period until “mother could stabilize her situation and re-establish an appropriate parental relationship with the child.”

2011--- Jones v. Henrico Dept. of Soc. Srvc’s, Va. Ct. of Appeals, Unpublished, No. 1182-10-2
The trial court did not err in finding that child’s grandparents were not suitable custodians for purposes of receiving the child from foster care placement. The grandparents refused to acknowledge the prior abuse of the child by the child’s half-brother, despite the fact that the child’s half-brother admitted to the abuse and submitted to a polygraph test that demonstrated he was telling the truth. The child’s counselor testified that it was important for the child to be able to openly discuss her thoughts and feelings about the abuse, and that it might negatively impact her progress in therapy if her expressions were punished or negated. Furthermore, the grandparents failed to follow through with the reunification therapy recommended by the Department of Social Services, and by the time of the hearing, had not seen the child in two years.

2010--- Barbour v. Graves, Va. Ct. of Appeals, Unpublished, No. 2776-08-2
Trial court did not err in finding that the Respondent, a non-parent, was a person with a "legitimate interest" sufficient to give her standing to seek custody of a child where, despite the trial court having made no finding that she fit within one of the specified categories listed in Va. Code §20-124.1, the trial court found that (i) the child had lived with the her full time for over two years and at least part- time prior to that, (ii) that she had taken on all the responsibilities of a parent, including but not limited to meeting the child's physical needs for housing, clothing and food without significant help from the child's father, the Petitioner, (iii) that she bore the financial responsibilities for the child and had been actively involved in his education, and (iv) that she had treated the child as her own, giving birthday parties and actively celebrating holidays with him.

The trial court did err however, in determining that the parental presumption favoring the father had been overcome by evidence that the father "voluntarily relinquished" custody of the child. The trial court specifically found in its letter opinion that the father had maintained weekend and holiday visits with the child, and that the child appeared to have a good relationship with the father. Moreover, both the Respondent and the guardian ad litem conceded at oral argument that there was insufficient evidence to support the trial court's finding of voluntary relinquishment.

2009--- Florio v. Clark, 277 Va. 566
Trial court did not err in holding that child’s maternal aunt and her husband overcame father’s natural parent presumption. Father did not support the child financially or visit with the child frequently during the mother’s life, was not involved in the child’s schooling, activities, or general upbringing, and did not seek increased custody or visitation with the child until after the mother’s death. Father had an extensive record of misdemeanor and traffic offenses, and had been less than honest with the IRS and with court-appointed custody evaluators. He had no home of his own, could not verify the stability of his income, did not have a high-school diploma or GED equivalent, and had no health insurance. Furthermore, the aunt and her husband had supported and cared for the child full time since the mother’s death.

2009 --- Prashad v. Copeland and Spivey, 55 Va. App 247
The mere registration in Virginia of orders entered by a North Carolina court which granted custody of a child to the biological father and his homosexual partner, over the objection of the child's natural mother, did not implicate the Virginia Marriage Amendment by "tacitly" recognizing the homosexual relationship as a legal status to which marital rights could be afforded. The child's father and his homosexual partner entered into a surrogacy agreement with the child's natural mother, and upon the birth of the child, moved with the child away from the mother. When the father and his partner later denied the mother visitation, the mother sought relief through the North Carolina courts. The record demonstrated that the North Carolina court allowed the homosexual partner to intervene in the case and awarded him custodial rights because he had been a full time parent to the child since birth, had been originally listed as the father on the child's birth certificate, had allowed the child to use his surname, and was believed by all parties involved to be the child's natural father for the first fourteen months of the child's life until DNA testing proved otherwise. The Virginia court found that, based on those circumstances cited in the record, the North Carolina court's grant of custodial rights to the homosexual partner arose from his "legitimate interest" in the child, and not from his homosexual relationship with the child's natural father.

2008--- Bennett v. Bennett-Smith, Va. Ct. of Appeals, Unpublished, No. 1852-07-1
The law presumes that the child’s best interests will be served when in the custody of its parents. The presumption favoring a parent over a non-parent is a strong one – but can be rebutted if there is clear and convincing evidence that (1) the parent is unfit; (2) the court previously granted an order of divestiture; (3) the parent voluntarily relinquished custody; (4) abandonment has occurred; or (5) special facts and circumstances constitute an extraordinary reason to remove the child from the parent. (Citing Bailes v. Sours, 231 Va. 96 (1986)).

Mother did not intend a permanent relinquishment of custody by petitioning a court for Letters of Co- Guardianship, pursuant to an agreement with her parents that the parents would care for the child while the mother was at boot camp. When the mother returned from boot camp, the parents executed a Consent of Termination of Co-Guardianship, had the court enter an Order reflecting as much, and reunited thechild with her mother. Trial court did not err in holding that this evidence was insufficient to rebut the parental presumption in favor of the mother.

2008 --- Lynchburg Division of Soc. Srvc’s v. Cook, 276 Va. 465
Trial court erred in granting custody to the grandparents pursuant to Va. Code §16.1-278.15   and Va. Code §20-124.3, as the trial court failed to make specific factual findings as required by Va. Code §16.1-281.  Once a child is taken into custody and is subject to a foster care plan, the trial court is required to make findings pursuant to Va. Code §16.1-282   in order to transfer custody to an interested party.

The trial court erred in finding that appellant Lynchburg Division of Social Services did not need to be involved in the case once the grandparents obtained custody.  Although the trial court may grant temporary custody to a relative or other interested party, the Code contemplates that a foster care review hearing, pursuant to Va. Code §16.1-282.1   will take place.

2006--- Micus v. Mitchell, Va. Ct. of Appeals, Unpublished, No. 0964-05-2  

Trial court did not err in holding that grandmother met her burden of proving that denial of sole custody to her would result in actual harm to the child’s health or welfare.  Grandmother visited the child in Arizona after her father removed her there, and testified that the child was congested, coughing, and refused to eat or speak during the visit.  Expert testimony revealed that father’s practice of “agnihotra” rendered him unable to accurately perceive reality and incapable of putting the child’s needs before his own.  Furthermore, the father had acted violently toward the grandmother and had violated prior court orders by removing the child from the state without notice to either the court or the grandmother. 

2006 --- Gibson v. Roanoke DSS, Va. Ct. of Appeals, Unpublished, No. 0765-06-3  
Trial court did not err in denying grandparents’ petition for custody of three grandchildren, based on evidence that the children had been abused and traumatized by the parents for a long period of time, resulting in serious and long-term mental, physical, and emotional conditions, and on evidence that despite being aware of the children’s suffering at the hands of their parents, the grandparents did not seek help for the children.  Evidence further indicated that the grandparents had previously relinquished custody of another grandchild because they could not take care of that child’s needs, which were far fewer than those of the grandchildren at issue.

2005 --- Denise v. Tencer, 46 Va. App. 372  
In an action between child’s Father and maternal grandfather, the trial court did not commit error in failing to award sole legal custody to Father.  Decisions in Troxel, Williams, and Griffin, were inapposite and did not support Father’s argument because they involved situations in which a non-parent with no custodial rights requested visitation against a parent whose constitutional right to child-rearing autonomy had not in the least been altered.  Father twice by court order consented to place primary physical and joint legal custody in grandfather.

Trial court did not err in finding that a material change of circumstances had occurred and finding it in the child’s best interest that primary physical custody of child be awarded to Father.

2005--- Florio v. Clark, Va. Ct. of Appeals, Unpublished, No. 2633-04-1
Trial court abused its discretion in refusing to admit an updated home study of the father, which the court itself had ordered, as a sanction for an arguable failure to comply with the court’s deadline for filing the report.  Because the previous home studies were conducted almost two years prior to the trial date, the updated home study was the most recent evidence from an impartial source in the court’s possession concerning factors directly bearing on the best interests of the child, such as the father’s home situation and interactions with the child.   

Trial court erred in excluding testimony by a licensed clinical social worker who had met with the child, the father, and the maternal aunt and uncle to conduct court-ordered counseling on a weekly basis for approximately two years.  Trial court initially ruled that the social worker could testify regarding observations, but not make a recommendation.  However, during trial, the court prevented the social worker from testifying to observations related to the “best interests” factors of Va. Code Va. Code §20-124.3.

2005--- South v. South, Va. Ct. of Appeals, Unpublished, No. 0700-04-2
Trial court’s failure to apply the correct legal standard in ruling on a mother’s motion to strike the evidence presented by the grandparents was harmless error. In order to survive the motion to strike, the grandparents’ had to establish a prima facie case that the child might suffer actual harm if custody was granted to the mother. The trial court incorrectly sustained the motion based on the grandparents' failure to prove either that custody with them would be in the child’s best interests, or that the mother was “unfit.” The Court of Appeals held that the grandparents failed to make a prima facie case as they presented no evidence of any actual harm to the child if placed in mother’s custody.

2003--- Ramsey v. Clements , Va. Ct. of Appeals, Unpublished, No. 2988-02-3
In a case involving the mother versus the father, the trial court did not err in refusing to apply the law applicable in custody and visitation disputes between biological parents and third parties, despite the court’s finding that that the child was spending over half of her time with the grandparents and was “being primarily raised by the grandparents.”  Legal and physical custody had remained with the father since he and the mother entered into a separation agreement.  The grandparents had never been awarded custody or visitation by a court, and were not parties to this action.  Thus, third-party custody and visitation law did not apply here.

2001--- Carter v. Carter, 35 Va. App. 466
Once an adoption is final, there is no distinction in law between the biological parent and the adoptive parent. Thus, the presumption ordinarily available to a biological parent in a custody dispute against a third party does not apply when the third party has legally adopted the child and become a parent.

2001--- Switzer v. Smith , Va. Ct. of Appeals, Unpublished, No. 0779-00-3
Trial court did not err in determining that a couple unrelated to the child had a “cognizable and reasonable, legitimate interest” pursuant to Va. Code §20-124.1.  The child’s parents separated after mother suffered significant physical abuse at the hands of father, and mother subsequently asked that the couple look after the child.  At the time of the hearing in the trial court, the child had been living with the couple for almost two years and had been thriving under their care.  Thus, the couple had a close relationship with the child and a reasonable interest in maintaining that relationship. 

As a matter of first impression in Virginia, the Court of Appeals held that all non-parents, whether relatives or not, come before the court equally in custody cases.  The grandparents had argued that they should be favored by law over the non-relative couple that was granted custody.

1999--- Brown v. Burch, 30 Va. App. 670  
Despite the fact that the child’s natural father joined the child’s stepfather in seeking joint legal custody of the child, with physical custody to the stepfather, the stepfather, as a non-parent, still had the burden of proving by clear and convincing evidence why the child’s mother should be denied custody.  The natural father’s involvement did not allow the stepfather to transcend his status as a non-parent. 

Trial court did not err in awarding joint legal custody to the stepfather and father, with primary physical custody to the stepfather, where evidence showed that the child had lived with the stepfather for over six years, and had thrived in all respects.  Moreover, both the guardian ad litem and a mental health professional recommended that the child be allowed to remain with the stepfather.  Furthermore, the stepfather had never interfered with either the mother’s or the natural father’s visitation rights or respective relationships with the child, whereas evidence showed that the mother had previously sought to restrict the stepfather’s access to the child upon the parties’ separation.

1997--- Weig v. Weig, Va. Ct. of Appeals, Unpublished, No. 0756-96-2
Trial court did not err in finding that the following constituted “special facts and circumstances” sufficient to overcome the natural parent-presumption: the child’s mother left the child with the stepfather upon leaving the marital residence; the child had resided with the stepfather for over two years; the stepfather had arranged for counseling for the child’s emotional problems which resulted from the separation of the parties; the stepfather had provided all day-to-day care for the child since the mother left; the stepfather had exhibited excellent parenting skills; the mother had visited the child only twice per month since leaving the child with the stepfather; and the mother had provided little if any emotional and financial support for the child during this two year period.

1997--- King v. King, Va. Ct. of Appeals, Unpublished, No. 2452-96-3
Trial court did not err in awarding custody of child to mother, over objection of the child’s grandparents, despite the fact that mother’s romantic friend killed the child’s natural father. The grandparents failed to prove by clear and convincing evidence that contact between the child and his natural father’s killer, by itself, constituted an “extraordinary reason” sufficient to overcome the natural parent presumption and to deny mother custody of her son. The court refused to adopt a per se rule prohibiting a child from contact, visitation or custody with the killer of a child’s natural parent.

1997--- Boyce v. Bush, Va. Ct. of Appeals, Unpublished, No. 2044-96-3
When a natural parent has voluntarily relinquished custody to a non-parent, the natural parent-presumption is considered rebutted for purposes of future proceedings, and the general “best interests of the child” standard applies. (Citing Patrick v. Byerley, 228 Va. 691 (1985)). Abandonment of a child without justification establishes parental unfitness. Trial court did not err in granting custody of child to former stepparent, when, although the child’s natural mother abandoned the child, leaving her with the child’s grandparents, evidence showed that the best interests of the child would be served by granting custody to the former stepfather.

1996--- Bonds v. Anderson, Va. Ct. of Appeals, Unpublished, No. 2445-95-1
Trial court did not err in finding that, despite grandmother’s testimony that father had violent tendencies, had personally and financially neglected the child since he and the child’s mother stopped dating, and was cohabiting with a woman to whom he was not yet married, grandmother did not provide sufficient evidence to overcome the natural parent-presumption of father. Father’s evidence showed that he had obtained employment in another state, was pursuing an education, and had been regularly involved in the child’s care and support since the death of the child’s mother.

1996--- Roberts v. Williams, Va. Ct. of Appeals, Unpublished, No. 0303-95-3
Trial court did not err in finding that the child’s second cousin was unable to rebut father’s natural-parent presumption, due to her failure to prove by clear and convincing evidence that the father had voluntarily relinquished custody of the child. The child’s biological mother left the father, taking the child to live with mother’s first cousin while mother stayed in a shelter. Although the cousin was awarded temporary custody of the child by the juvenile court, that ruling was made without notice to father. When father did learn of the temporary custody order, he made several attempts through court to gain custody of the child.

1995--- Bottoms v. Bottoms, 249 Va. 410
In this case involving a lesbian mother versus a grandmother, the Supreme Court of Virginia reversed the Court of Appeals and upheld the trial court’s award of custody to the grandmother, based upon the mother’s unfitness. The Supreme Court listed the evidence of the mother’s unfitness, including specific examples of irresponsibility, neglect, violence, and immoral behavior. The guardian ad litem’s recommendation was also cited. Though a lesbian mother is not per se an unfit mother, conduct inherent in lesbianism is a Class 6 felony and that conduct is an important consideration in determining custody.

1995--- Nicklaus v. Strong, Va. Ct. of Appeals, Unpublished, No. 0076-95-2
Trial court did not err in finding that mother’s abuse of the child, evidence suggesting that mother’s current husband had sexually and physically abused the child, mother and current husband’s failure to abide by court orders to obtain counseling, and mother’s voluntarily relinquishing of custody to her sister-in-law for one year constituted unfitness and special facts and circumstances sufficient to overcome the natural parent presumption otherwise available to the child’s mother. Evidence also showed that, despite blood tests indicating otherwise, the former stepfather was listed as the father on the child’s birth certificate, and was generally considered by both himself and by the child as the child’s father.

1993--- Elder v. Evans, 16 Va. App. 60
An award of custody to one parent in a contest between the parents does not, in the absence of some other intervening custody order, eliminate the natural parent-presumption of the non-custodial parent in a subsequent custody dispute between the non-custodial parent and a third party. As between two natural parents of a child, a decree granting one of them custody is not the same as an adjudication that the parent not receiving custody is unfit, nor does such an award amount to a severance of the parent/child relationship.

The trial court erred in awarding custody of a child to a third party without applying the parental presumption. Although the court had previously awarded custody of the child to the mother, and the mother had then left the child in the third party’s care, the father was still entitled to the presumption accorded natural parents over non-parents in the subsequent dispute with the third party.

1993--- Terrell v. Terrell-Hackett, Va. Ct. of Appeals, Unpublished, No. 1701-92-3
Trial court erred in awarding legal custody and restricted visitation of child to mother, on condition that the child continue to reside with mother’s foster parents. Although the imposition of special conditions on custody normally lies within the sound discretion of the trial court, this ruling essentially gave custody of the child to non-parents of the child over the objection of the child’s father, without first making explicit findings regarding father’s fitness or special circumstances sufficient to rebut his natural parent presumption. Case remanded to trial court to determine whether father’s natural parent-presumption had been rebutted.

1991--- Walker v. Fagg, 11 Va. App. 581
Father did not voluntarily relinquish custody and thereby relinquish his natural-parent presumption by filing petitions asking the court to award temporary custody of his children to his mother. In filing the petitions, the father asked the trial court to approve terminable, temporary custody agreements that the father had made with his mother in anticipation of his prosecution and incarceration for the death of his wife. Requesting the court to approve the temporary agreement constituted neither a divestiture of his rights as a natural parent nor an approval of his relinquishment of those rights.

The trial court properly concluded that a father was “unfit” for purposes of rebutting his natural parent- presumption, based on the following evidence: the father was under indictment for the murder of his wife; the father’s own admission that he had “lived with the devil for 16 years;” and the father’s history of alcohol abuse, spousal abuse, unemployment and general family neglect. Upon rebuttal of the presumption, the father stood on equal footing with the grandparents and thus had the burden of proving that custody with him was in the children’s best interests. The trial court did not err in awarding temporary custody to the father, with temporary physical custody to the father’s mother, subject to supervision by the local Department of Social Services, based on evidence that the father had experienced a complete turnaround after the bringing of criminal charges against him in the death of his wife, and testimony by expert witnesses that the children were supportive of their father and felt that they were playing an important role in the family and in his rehabilitation.

1987--- Smith v. Pond, 5 Va. App. 161
In this case the Virginia Court of Appeals reversed the trial court’s custody award to a third party. In doing so, the appellate court noted that, if the presumption favoring parental custody is rebutted, as it was in this case (based upon voluntary relinquishment), the best interest of the child still must be considered.

The trial court erred in holding that a child’s medical problems alone, which consisted of a cleft palate with resulting nutritional problems, skin disease, and eye problems, constituted special facts and circumstances sufficient to take the child from her parents. While those conditions constituted extraordinary circumstances that would justify taking a child from his or her natural parents if the natural parents were unwilling or unable to provide adequate medical care, or refused, neglected or failed to do so, the record established that the natural parents were aware and concerned about the child’s medical problems, and that they had taken actions to see that the medical needs were met.

1954--- Judd v. VanHorn, 195 Va. 988
The parents of minor children are declared their natural guardians, and upon death of either parent the survivor shall be the natural guardian. Where custody of children is granted to one party by a divorce decree, such grant does not forever cut off and bar the other parent’s right to custody, but only establishes the right of custody between the two spouses during their lives. Upon the death of a parent who has held custody under a divorce decree, the right to custody automatically inures to the surviving parent, provided of course, that the surviving parent is a fit custodian for the child.

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