William A. King and Margaret King v. Alice M. King ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
WILLIAM A. KING and
MARGARET KING
MEMORANDUM OPINION * BY
v. Record No. 2452-96-3 JUDGE SAM W. COLEMAN III
OCTOBER 7, 1997
ALICE MICHELLE KING
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
George W. Nolley for appellants.
(Bryan K. Selz; Overbey, Hawkins & Selz, on
brief), for appellee.
Appellants, William A. and Margaret King, appeal from the
trial court's decree awarding custody of their three-year-old
grandson to his natural mother, Alice Michelle King. They
contend that the trial court erred by awarding custody of the
child to the mother without prohibiting that the child have
contact with Kenneth Gardner, the mother's romantic friend and
the killer of the child's natural father. We hold that the trial
court did not err in awarding custody of the child to the mother
and did not abuse its discretion by refusing to impose a
restriction upon the mother's permitting contact with Gardner.
Accordingly, we affirm the trial court's custody award.
"In all child custody cases, including those between a
parent and a non-parent, 'the best interests of the child are
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
paramount and form the lodestar for the guidance of the court in
determining the dispute.'" Bottoms v. Bottoms, 249 Va. 410, 413,
457 S.E.2d 102, 104 (1995) (quoting Bailes v. Sours, 231 Va. 96,
99, 340 S.E.2d 824, 826 (1986)). In a custody dispute between a
parent and a non-parent, "the law presumes that the child's best
interests will be served when in the custody of the parent."
Bottoms, 249 Va. at 413, 457 S.E.2d at 104 (quoting Judd v. Van
Horn, 195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)). Although the
presumption favoring a parent is strong, a non-parent may
overcome the presumption by adducing clear and convincing
evidence of special facts and circumstances that constitute an
extraordinary reason to take the child from its parent, or
parents. Bailes, 231 Va. at 100, 340 S.E.2d at 826; Mason v.
Moon, 9 Va. App. 217, 220, 385 S.E.2d 242, 243 (1989).
First, the appellants urge that in cases such as this,
instead of applying the parental presumption, this Court adopt a
per se rule prohibiting contact, as a matter of law, between a
child and the killer of the child's natural parent. We decline
to embrace such a rigid principle. A per se rule would vitiate a
trial court's ability to weigh the myriad of circumstances that
must be considered in determining the best interests of a
particular child whose well-being lies before it. See Bottoms,
249 Va. at 419, 457 S.E.2d at 108; Doe v. Doe, 222 Va. 736, 748,
284 S.E.2d 799, 806 (1981) (rejecting per se rule of parental
unfitness of homosexual parent and finding homosexual conduct
2
another important consideration in determining custody); see also
Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651
(1986) ("In determining the best interests of the child, a court
must consider all the evidence and facts before it.") (emphasis
added). Accordingly, we reject the appellants' invitation to
adopt a per se rule that prohibits a child having contact,
visitation or custody with the killer of the child's parent. We
leave such determination to the trial court's sound discretion.
Appellants next contend that the trial court abused its
discretion by granting custody of the child to his mother, whose
romantic friend, Kenneth Gardner, killed the child's natural
father. Specifically, they assert that the trial court's order
constitutes reversible error because under the circumstances here
any contact between the child and Gardner cannot be in the
child's best interests.
The trial court is vested with broad discretion in making
the decisions that are necessary to promote the child's best
interests. Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d
794, 795 (1990). A trial court's determination of matters within
its discretion is reversible on appeal only where the trial court
has abused that discretion. Id. (citing M.E.D. v. J.P.M., 3 Va.
App. 391, 398, 350 S.E.2d 215, 220 (1986)). Moreover, when the
trial court hears evidence ore tenus, its findings are entitled
to the weight accorded to a jury verdict and such findings should
not be disturbed on appeal unless plainly wrong or unsupported by
3
the evidence. Bottoms, 249 Va. at 414, 457 S.E.2d at 104-05;
Bailes, 231 Va. at 100, 340 S.E.2d at 827.
In this case, the trial court heard evidence ore tenus from
the parties. The appellants' evidence consisted of their
testimony detailing their feelings about allowing their
grandchild to be in the company of the person who killed their
son, the child's father. The mother presented testimony from a
clinical psychologist who opined that the child would benefit
from a caring stepfather or father figure, whether Gardner or
someone else.
The law presumes that the child's best interests are served
by awarding custody to his mother, Michelle King. See Bottoms,
249 Va. at 413, 457 S.E.2d at 104. The appellants did not prove
by clear and convincing evidence that contact between the child
and Gardner, in and of itself, constitutes an "extraordinary
reason" to deny the mother custody of her son. See Mason, 9 Va.
App. at 221-22, 385 S.E.2d at 244 (holding that non-parents'
showing of possible adverse effects from contact between child
and killer of child's natural parent were insufficient to rebut
presumption favoring custody to parent). The evidence fails to
prove that contact between the child and Gardner would be
detrimental to the child. In fact, the psychologist's testimony
was to the effect that contact with Gardner would benefit the
child. Accordingly, we cannot say that the trial court's order
was an abuse of discretion or unsupported by the evidence.
4
For the foregoing reasons, we affirm the decree of the
circuit court.
Affirmed.
5