Opinion
Docket No.: CJ17-0130-00 Docket No.: CJ17-0130-01 Docket No.: CJ17-0131-00
12-12-2017
Re: Brown v. Hawkins
Devon Page, Esquire 125 St. Paul's Blvd., Suite 110 Norfolk, Virginia 23510 Rodney Hawkins, pro se 512 E. Little Creek Road, Apt. 1 Norfolk, Virginia 23505 Michael E. Grey, Esquire 6330 Newtown Road, Suite 410 Norfolk, Virginia 23502
Devon Page, Esquire
125 St. Paul's Blvd., Suite 110
Norfolk, Virginia 23510 Rodney Hawkins, pro se
512 E. Little Creek Road, Apt. 1
Norfolk, Virginia 23505 Michael E. Grey, Esquire
6330 Newtown Road, Suite 410
Norfolk, Virginia 23502 Dear Counsel and Mr. Hawkins:
Today the Court rules on an appeal filed by Beulah Brown ("Grandmother"), maternal grandmother of R.H. ("Child"), of an order entered by the Juvenile and Domestic Relations District Court of the City of Norfolk granting custody of Child to her natural father, Rodney Hawkins ("Father"), in response to a custody petition filed by Grandmother. The issues before the Court are (1) the appropriate standard for awarding custody of a child to a statutorily interested nonparent over the objection of a parent, and (2) whether Grandmother satisfied that standard based on the facts and evidence presented.
For the reasons stated herein, the Court holds that the appropriate standard for awarding custody of a child to a statutorily interested nonparent—under the circumstances here—is whether the nonparent has proved, by clear and convincing evidence, special facts and circumstances constituting an extraordinary reason to award custody and, if so, whether such custody supports the best interests of the child. Based on the evidence presented at trial, the Court finds that Grandmother failed to satisfy this high burden. The Court therefore DENIES Grandmother's petition for custody. The Court awards physical custody of Child to Father and awards joint legal custody of Child to Father, Mother, and Grandmother. The Court also grants reasonable and liberal visitation to Mother and Grandmother
Background
Child is nine years old and attends the fourth grade in a Norfolk public elementary school. She apparently is in good health, has no developmental delays, and is well-adjusted. She has lived with Grandmother in a spacious home her entire life, and her natural mother, Martha Brickhouse ("Mother"), lived with them until 2015, when Mother relocated to Georgia. Grandmother is sixty-five years old and is in good health.
Father is thirty-six years old, is in good physical health, and has no mental health issues. He has a tenth grade education, does not drive, and was incarcerated between 2010 and 2013. He is married and has two sons, ages three and six, from that relationship. He and his family live in a two-bedroom, one-bath home, and Father claims that Child has her own bedroom when she stays overnight. Father has seen Child only periodically during her life, and not at all while he was incarcerated. Both Father and Grandmother appear to have a close and loving relationship with Child and want to do what is in her best interests.
Mother relocated to Georgia in 2015. On March 9, 2017, Grandmother filed a petition in the Juvenile and Domestic Relations District Court of the City of Norfolk seeking custody of Child. Mother supported Grandmother's petition and filed a separate petition seeking only legal custody for herself. Father objected to Grandmother's custody petition and sought both physical and legal custody of Child. Despite the recommendation of the guardian ad litem ("GAL") that custody be awarded to Grandmother, the juvenile court granted physical custody to Father. Child has lived with Father since then. Grandmother appealed the decision to this Court.
A de novo trial was held on November 6, 2017. Grandmother and Mother concede that Father is a fit parent but assert that it is in Child's best interests for Grandmother to have physical custody. Grandmother offered no expert testimony regarding the impact on Child if custody were awarded to Father and not to her. Grandmother and Father both support the other party having visitation if granted custody. The GAL stated that he thought it was in Child's best interests to live with Grandmother and recommended that the Court award Grandmother physical custody of Child. Neither Grandmother nor the GAL assert that Child would suffer harm if Father were granted custody. At the conclusion of the hearing, the Court took the matter under advisement and granted the parties leave to submit post-trial briefs.
The GAL submitted a post-trial brief, in which he acknowledged—for the first time—that the proper test for nonparent custody determinations is not a simple best-interests test, but rather is the test outlined by the Virginia Supreme Court in Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d 824, 827 (1986). He nevertheless avers that Grandmother has proven, by clear and convincing evidence, that there are "special facts and circumstances that constitute an extraordinary reason to give her custody" over the objection of Father, as required by Bailes. (GAL Post-Trial Br. 2.) The GAL further asserts that because Grandmother had met her initial burden, the burden shifted to Father to show that it is in Child's best interest to award him custody. The GAL argues that Father failed to meet this burden, as all applicable best-interest factors weigh in favor of Grandmother. The GAL recommends the Court award joint legal custody to Grandmother and Father, with Grandmother having physical custody and Father having "liberal, reasonable and frequent visitation." Id. at 4.
Analysis
Legal Standard
A circuit court reviews the decision of a juvenile and domestic relations district court de novo. Va. Code Ann. § 16.1-296(I) (2016 Repl. Vol.). On appeal, a circuit court has only the power and authority granted to the juvenile and domestic relations district court. Id. The statutory provisions regarding custody of minor children apply equally in both the circuit court on appeal and the juvenile and domestic relations district court from which the appeal arose. Va. Code Ann. § 20-124.2 (2016 Repl. Vol.).
The "liberty interest . . . of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court." Troxel v. Granville, 530 U.S. 57, 65 (2000). Furthermore, "there is a presumption that fit parents act in the best interests of their children . . . . Accordingly, so long as a parent is fit, there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Id. at 68-69 (citations omitted); see also Williams v. Williams, 24 Va. App. 778, 783, 485 S.E.2d 651, 652 (1997), aff'd as modified, 256 Va. 19, 501 S.E.2d 417 (1998) (holding that state interference with the fundamental right to autonomy in child rearing must be justified by a compelling state interest).
In determining custody, the court shall give primary consideration to the best interests of the child. . . . The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.Va. Code § 20-124.2(B). Accordingly, when there is "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 its parent." Florio v. Clark, 277 Va. 566, 571, 674 S.E.2d 845, 847 (2009) (quoting Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d 824, 827 (1986)).
Nonparents seeking custody of a child may rebut the parental presumption by proving, by clear and convincing evidence, one of the following: (1) parental unfitness; (2) a prior order divesting the parent of custody; (3) the parent's voluntary relinquishment of custody rights; (4) abandonment; or (5) "special facts and circumstances . . . constituting an extraordinary reason for taking a child from its parent, or parents." Florio, 277 Va. at 571, 674 S.E.2d at 847 (quoting Bailes, 231 Va. at 100, 340 S.E.2d at 827). If the nonparent successfully rebuts the parental presumption, "then the natural parent who seeks to regain custody must bear the burden of proving that custody with him is in the child's best interests." Id. (citing Shortridge v. Deel, 224 Va. 589, 594, 299 S.E.2d 500, 503 (1983)).
Discussion
The Court has considered the pleadings, evidence and oral argument presented at trial, the GAL's oral report and recommendations, and applicable authorities. The Court now rules on the matters before it. A. The Proper Test to Determine Custody Between a Parent and Nonparent Is the Test Outlined by the Virginia Supreme Court in Bailes v. Sours and Florio v. Clark.
As an initial matter, Grandmother is a statutory "person with a legitimate interest" for purposes of seeking custody, a fact not disputed by Father. See Va . Code Ann. § 20-124.1 (2016 Repl. Vol.). Grandmother therefore has standing to seek custody of Child. Id. § 20-124.2(B).
The rights of nonparents in custody disputes were addressed directly by the Virginia Supreme Court in the seminal case of Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986), and reaffirmed in Florio v. Clark, 277 Va. 566, 674 S.E.2d 845 (2009).
Bailes involved a child custody dispute between the child's biological mother and stepmother. 231 Va. at 97, 340 S.E.2d at 825. The child's biological parents were married; however, upon separation, the child moved to a separate residence with his father. Id. The court awarded custody to the father and granted the mother visitation. Id. The father remarried shortly thereafter, and the child lived with his father and stepmother. Id. at 97-98, 340 S.E.2d at 825. When the parents initially separated, his mother visited him regularly. Id. at 97-98, 340 S.E.2d at 825-26. Starting at the age of two years old, however, the child apparently did not want to visit his mother, and he began experiencing some health issues, including "psychological problems," eczema, and bed-wetting. Id. at 98, 340 S.E.2d at 826. The mother testified that she did not want to force visitation and, as a result, her visits with the child "diminished appreciably over the years." Id. The father died when the child was eleven years old, whereupon the child continued to live with his stepmother. Id. at 97-98, 340 S.E.2d at 825.
At the time of trial, the child was twelve years old, and his mother had not seen him in approximately five years. Id. A psychologist provided expert testimony and opined that the child's eczema and bed-wetting were a direct result of his mourning the loss of his father, with whom he was very close, the stress of the custody dispute, and the possibility of having to live with his mother. Id. The psychologist concluded that granting the mother custody would result in a "significant, harmful, long-term impact" on the child and, if forced to live with his mother, there was "a reasonable likelihood he would run away" or worse. Id. at 101, 340 S.E.2d at 827. The Court also considered the wishes of the child, who indicated he wanted to remain with his stepmother, as "she was his life." Id. Both mother and stepmother were fit and "capable of providing him with a suitable home in a moral climate." Id. at 99, 340 S.E.2d at 826.
The Court held that a nonparent can be awarded custody by proving, by clear and convincing evidence, inter alia, "special facts and circumstances . . . constituting an extraordinary reason for taking a child from its parent, or parents." Id. at 100, 340 S.E.2d at 827. In determining that the stepmother had met her burden, the Court recognized "the presumption in favor of a parent over a non-parent is a strong one, not easily overcome, and the result we reach here must not be construed to weaken it." Id. at 101, 340 S.E.2d at 827-28.
Florio—a case decided after the United States Supreme Court reaffirmed the fundamental right of parenting in Troxel v. Granville—involved a custody dispute that arose between the child's biological father and the child's aunt and uncle. 277 Va. at 569, 674 S.E.2d at 846. When the child was born, his parents had already separated and had agreed that the mother would have custody of the child, with liberal visitation by the father. Id. When the child was six months old, he and his mother moved in with his maternal aunt and uncle, staying there for approximately one year and then moving "just 'two cornfields'" away. Id. Over the next four years, the aunt and uncle maintained regular contact, seeing the child several times each week and taking vacations with him. Id. When the mother became ill, the aunt and uncle stepped in as the child's day-to-day caregivers. Id. The child eventually moved back in with his aunt and uncle, and the mother died two months later. Id. Prior to her death, the mother executed a will in which she nominated the aunt to be the child's guardian. Id.
Since the initial custody agreement, the father "showed little interest in [the child], visiting him very rarely." Id. at 571, 674 S.E.2d at 847. The father never paid child support and had an extensive misdemeanor criminal record, including offenses relating to intoxication. Id. Although the father was in the process of building a home, it was not yet complete, and he was living with his parents. Id. at 572, 674 S.E.2d at 847. The father dropped out of high school while in the tenth grade, never obtained a G.E.D., did not provide any insurance for the child, and did not show that he had the "ability to deal with [the child's] emotional, educational and health needs." Id. The aunt and uncle, on the other hand, had college degrees, had previously served in the military, provided insurance for the child, and had been attentive to the child's needs. Id. at 572, 674 S.E.2d at 847-48. At the age of ten years old, the child "expressed a preference to live with his father, although he was fond of the [aunt and uncle] and was relaxed, happy, and comfortable in their home." Id.
The court held that the Bailes test was appropriate to determine custody and opined that "[o]nce the presumption favoring parental custody has been rebutted, the natural parent who seeks to regain custody must bear the burden of proving that custody with him is in the child's best interests." Id. at 571, 674 S.E.2d at 847 (citing Shortridge v. Deel, 224 Va. 589, 594, 299 S.E.2d 500, 503 (1983)). Based on the facts presented, the Court found that "the totality of the record [was] sufficient to support, by clear and convincing evidence, the trial court's holding that the presumption was rebutted by 'special facts and circumstances . . . constituting an extraordinary reason for taking a child away from its parent.'" Id. at 573, 674 S.E.2d at 848 (quoting Bailes, 231 Va. at 100, 340 S.E.2d at 827). The court then went on to find that custody with the aunt and uncle was in the child's best interests. Id.
Based on the foregoing, the proper test to apply in nonparent child custody cases is not a simple best-interests-of-the-child analysis, but rather is the test established by Bailes and clarified by Florio. The question before the Court in the instant case therefore is whether Grandmother proved, by clear and convincing evidence, that special facts and circumstances constituting an extraordinary reason exist to overcome the presumption that custody of Child should be awarded to her natural parent. If so, the Court must then address whether awarding custody to Grandmother is in the best interests of Child. B. Grandmother Failed to Prove, by Clear and Convincing Evidence, that Special Facts and Circumstances Constituting an Extraordinary Reason Warranted Awarding Her Custody.
There is no allegation that one of the other Bailes prongs has been satisfied, i.e., parental unfitness, a prior order divesting the parent of custody, the parent's voluntary relinquishment of custody rights, or abandonment. Florio, 277 Va. at 571, 674 S.E.2d at 847 (citing Bailes, 231 Va. at 100, 340 S.E.2d at 827).
In order to infringe on a parent's fundamental right of parenting, a nonparent seeking custody must overcome a very high burden. Bailes v. Sours, 231 Va. 96, 101, 340 S.E.2d 824, 827 (1986) (describing the parent-child presumption as a strong presumption not easily overcome). Merely demonstrating that the best interests of the child are supported by nonparent custody is insufficient. See Troxel v. Granville, 530 U.S. 57, 70 (2000) (holding that the substitution of the court's opinion of what was in the child's best interests for that of a fit parent is unconstitutional); see also Va . Code Ann. § 20-124.2 (2016 Repl. Vol.) (mandating that courts give due regard to the primacy of the parent-child relationship and requiring nonparents to satisfy a clear and convincing burden of proof). In a situation such as that presented here, there must be some "extraordinary reason" to warrant denying a biological parent custody of his or her child. Florio v. Clark, 277 Va. 566, 573, 674 S.E.2d 845, 848 (2009); Bailes, 231 Va. at 100, 340 S.E.2d at 827. In this case, Grandmother failed to meet this high burden.
Although Bailes and Florio held that a nonparent can rebut the parental presumption by proving, by clear and convincing evidence, an extraordinary reason to award custody, Virginia appellate courts have not specifically articulated what constitutes this requisite showing.
The burden of a nonparent seeking child custody necessarily must be at least as great as the burden when seeking child visitation. See South v. South, No. 0700-04-2, 2005 Va. App. LEXIS 96, at *10-11 (Mar. 8, 2005) ("[T]he correct legal test in custody cases between a parent and non-parents must at a minimum satisfy the standards established for visitation cases."). The Court therefore is guided by the well-established principles in Virginia nonparent child visitation cases. Virginia requires that a nonparent seeking visitation prove that actual harm to the child's health or welfare will result without the requested visitation before the court will consider whether such visitation is in the best interests of the child. Williams v. Williams, 24 Va. App. 778, 784, 485 S.E.2d 651, 654 (1997), aff'd as modified, 256 Va. 19, 501 S.E.2d 417 (1998)) (involving parents united in opposing the nonparent's visitation); see also Griffin v. Griffin, 41 Va. App. 77, 82-83, 581 S.E.2d 899, 902 (2003) (involving one parent opposing the nonparent's visitation and one silent parent).
As is appropriate, the Court does not consider unpublished Court of Appeals Opinions to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent that the Court finds it persuasive, which is permissible. See Va. Sup. Ct. R. 5.1(f); Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999).
Judge McClanahan, writing on behalf of the Court of Appeals, expressly adopted the nonparent visitation "actual harm" test in a nonparent custody case in South v. South, 2005 Va. App. LEXIS 96, at *10-11. This was a pre-Florio case, however, and she applied the Bailes test in a subsequent nonparent custody case. See Barbour v. Graves, No. 2776-08-2, 2010 Va. App. LEXIS 192, at *10 (May 10, 2010); see also Hart v. Hart, No. 1724-11-1, 2012 Va. App. LEXIS 188, at *11-12 (June 5, 2012) ("The higher actual-harm standard, articulated in Troxel, governs child custody and visitation disputes between a fit parent and a third-party nonparent . . . ." (emphasis added)).
The Court also looks to the adoption arena for guidance. In Copeland v. Todd the Supreme Court of Virginia similarly focused on the harm to a child if the nonparent's requested relief was denied when it explained as follows:
While in both adoption and custody cases the primary consideration is the welfare and best interest of the child, it does not necessarily follow that the natural bond between parent and child should be ignored or lightly severed. On the contrary, this bond should be accorded great weight . . . . We must determine whether the consequences of harm to the child of allowing the parent-child relationship to continue are more severe than the consequences of its termination.282 Va. 183, 198, 715 S.E.2d 11, 19 (2011) (emphasis added) (quoting Doe v. Doe, 222 Va. 736, 747, 284 S.E.2d 799, 805 (1981)).
The Court therefore holds that in nonparent child custody cases, the Bailes "extraordinary reason" factor should be analyzed in a manner similar to the "actual harm" test used in nonparent child visitation and termination of parental rights cases. Of note, the Virginia Supreme Court in Florio did not address the specific issue of whether a nonparent must prove actual harm to the child when seeking custody.
In Barbour v. Graves, an unpublished Virginia Court of Appeals nonparent custody decision, the Court commented as follows:
We further note for purposes of remand that [the father] also argues the circuit court erred in rejecting application of an "actual harm" standard when considering whether the non-parent] had rebutted the parental presumption under [Virginia's custody and visitation statute]—the same standard that applies under the statute when a nonparent's request for visitation is considered. See Williams, 24 Va. App. at 784-85, 485 S.E.2d at 654 ("We interpret [the statute] to evidence the legislature's intent that the court make the necessary finding that a denial of visitation would be harmful or detrimental to the welfare of the child, before interfering with the constitutionally protected parental right of the child involved" through application of the "'best interests of the child'" standard.); see also Todd v. Copeland, 282 Va. at 790, 689 S.E.2d at 792 (2010) ("[W]e conclude that a trial court must make a detriment to the child [i.e., "actual harm"] determination, regardless of the language of [Virginia's adoption statutes], before entering an adoption order, in order to protect the Fourteenth Amendment rights of a nonconsenting biological parent."). This "actual harm" test in a visitation context under [the statute] has not been specifically addressed by a Virginia appellate court in a custody dispute. However, when the Virginia Supreme Court recently addressed the parental presumption in Florio, in the context of a parent/non-parent dispute over custody of a minor child, the Court reaffirmed the principles established earlier in Bailes without application of the actual harm standard, as discussed above.2010 Va. App. LEXIS 192, at *11 n.5 (emphasis added).
In Bailes, potential harm to the child clearly was considered by the Virginia Supreme Court. In light of the psychologist's conclusion that granting the mother custody would result in a "significant, harmful, long-term impact" on the child and, if forced to live with his mother, there was "a reasonable likelihood he would run away" or worse, the court found that "the likelihood of inflicting serious harm to [the child] is so clearly established by the evidence that the presumption favoring the mother is repugnant to the child's best interest." Bailes, 231 Va. at 101, 340 S.E.2d at 827-28.
Other Virginia appellate cases applying the Bailes test and focusing on the extraordinary-reason prong in nonparent child custody determinations have specifically evaluated whether the child would be harmed if nonparent custody were not awarded. See, e.g., Florio, 277 Va. at 572, 674 S.E.2d at 847 (noting that the father was ill equipped to deal with the "emotional, educational and health needs" of a child with attention deficit hyperactivity disorder and a learning disorder); Gibson v. Kappel, No. 0180-11-4, 2011 Va. App. LEXIS 352, at *10 (Nov. 11, 2011) ("Also of significant import, . . . the parents have caused harm to the child and she would suffer further harm if placed in the custody of either parent the trial court did not err in holding that the grandparents had presented clear and convincing evidence to rebut the parental presumption."); Micus v. Mitchell, No. 0964-05-2, 2006 Va. App. LEXIS 81, at *13 (Mar. 7, 2006) (noting that "the trial court found that there was 'actual harm' to child when she was in father's care"); South v. South, No. 0700-04-2, 2005 Va. App. LEXIS 96, at *13 (Mar. 8, 2005) ("In view of the complete absence of evidence in grandparents' case of any actual harm to the child if placed in mother's custody, we cannot say that they made a prima facie case to deprive mother of her right to custody."); Mason v. Moon, 9 Va. App. 217, 223, 385 S.E.2d 242, 246 (1989) (citing Bailes, 231 Va. at 98-99, 340 S.E.2d at 826) ("There is no credible evidence in the record which would indicate that granting custody of the child to [the grandmother] would harm the child psychologically.").
In the instant case, Grandmother presented no evidence at trial demonstrating that Child would suffer harm if Father—as opposed to Grandmother—were to have custody of Child. The facts before the Court are analogous to those in Florio in many respects. Father has only attained a tenth grade education, has a serious criminal record, and has maintained little involvement in Child's life. Child has lived virtually her entire life with Grandmother. Additionally, as the mother in Florio supported the grandmother's request for custody, as evidenced in her will, here Mother supports Grandmother's petition for custody.
Of note, the "actual harm" test does not apply in nonparent child visitation cases where one parent supports the nonparent visitation petition. See Dotson v. Hylton, 29 Va. App. 635, 639, 513 S.E.2d 901, 903 (1999) (holding that the best-interests-of-the-child standard—and not the actual-harm standard—applies when one parent supports nonparent visitation, because one parent's fundamental parental right is pitted against the other parent's identical fundamental right). Although Mother supports Grandmother's custody petition here, the fundamental right of Father—to actually have custody of Child—is juxtaposed with the fundamental right of Mother—to decide who will have custody of Child, without seeking custody herself. As the Court of Appeals opined, a parent's involvement in supporting a nonparent's petition for child custody "does not allow [the non-parent] to transcend his status as a non-parent." Brown v. Burch, 30 Va. App. 670, 686, 519 S.E.2d 403, 411 (1999). Mother's support of Grandmother's custody petition therefore is irrelevant to the nonparent custody analysis.
That is where the similarities end, however. Unlike Florio, where the father did not have his own home, here Father lives in a two-bedroom house with his wife and two sons. Although the living arrangements certainly are not optimal, they do not warrant denying custody to Father. Additionally, Child has no developmental needs and is well adjusted overall. Although Father was incarcerated for a period of time, there is no evidence that the criminal conduct involved or affected Child. In fact, at trial Grandmother conceded that Father is a fit parent and that Father and Child appear to have a close and loving relationship.
At the Hearing, Father represented that Child has her own bedroom and his two sons stay with him and his wife in the other bedroom.
Most importantly, in Florio—as in other cases evaluating whether an extraordinary reason warranted nonparent custody—the Court addressed the harm that would be caused to the child if the father were awarded custody. The Court specifically noted that the father was ill equipped to deal with the physical, emotional, and mental needs of his child, who had attention deficit hyperactivity disorder and a learning disorder. In other words, the failure to grant custody to the aunt and uncle would have harmed the child. Here, by contrast, Child has no special needs or developmental delays, and Grandmother did not allege that Father is unable to meet the Child's emotional, physical, or intellectual needs. In short, Grandmother presented no evidence, by way of expert testimony or otherwise, that Child would be harmed by Grandmother not being awarded custody.
Grandmother neither alleged any harm to Child nor offered any experts who could testify to the impact on Child were she to live with Father. Cf. Florio, 277 Va. at 572, 674 S.E.2d at 847 (considering expert testimony); Bailes, 231 Va. at 826, 340 S.E.2d at 98-99 (same).
Even if awarding Grandmother custody were in Child's best interests, arguendo, that alone would be insufficient to overcome Father's fundamental right to raise his daughter. As the Troxel court held, a court applying a best-interests test would be merely substituting its judgment—and therefore the state's judgment—for a parent's judgment, which would violate the Fourteenth Amendment.
The Court recognizes Father's willingness to allow Grandmother to have visitation with Child. See Troxel v. Granville, 530 U.S. 57, 71-72 (2000) (considering the parent's assent to nonparent visitation in its evaluation). Additionally, the Court notes that court-ordered visitation with Grandmother would be appropriate if Mother supported Grandmother's visitation petition and such visitation were in Child's best interests. See Dotson, 29 Va. App. at 639, 513 S.E.2d at 903.
Based on consideration of the evidence presented at trial, argument of counsel, the GAL's post-trial brief, the GAL's recommendations, and appropriate authorities, the Court finds that Grandmother failed to prove, by clear and convincing evidence, special facts and circumstances constituting an extraordinary reason for granting custody to Grandmother.
Because the Court finds that Grandmother did not rebut the parental presumption, the Court need not analyze whether physical custody with Grandmother would be in Child's best interests. --------
Conclusion
Because the Court finds that the appropriate test is whether Grandmother proved, by clear and convincing evidence, special facts and circumstances constituting an extraordinary reason to award her custody, and that Grandmother failed to satisfy this high burden, the Court DENIES Grandmother's custody petition. The Court therefore awards physical custody of Child to Father and awards joint legal custody of Child to Father, Mother, and Grandmother. The Court grants reasonable and liberal visitation to Mother and Grandmother.
A Final Custody and Visitation Order consistent with this Opinion is enclosed. The case is dismissed, and all future matters regarding the custody and visitation of Child are transferred to the Juvenile and Domestic Relations District Court of the City of Norfolk for future enforcement or modification, as necessary.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/jns Enclosure