Virginia Lawyers Weekly VA Lawyers Weekly
Where the father and grandmother appealed a JDR court’s award of custody to a child’s maternal aunt, the circuit court held that the aunt has failed to satisfy the high burden to rebut the presumption that custody should be awarded to the parent.
Presumption not overcome
“[A] nonparent can overcome the parental presumption by proving, by clear and convincing evidence, that the child would be harmed because the biological parent is an unfit parent.
“Aunt argues that Father is unfit because his employment and residence have been unstable, he has not lived with S.L. or acted as S.L’s legal or financial custodian, and he has not maintained insurance coverage for S.L. …
“[A]lthough some evidence was presented at trial indicating that Father has not worked consistently, he is currently employed at CBN. Additionally, although Aunt alleged that Father has not acted in a custodial capacity, she is not in a position to credibly comment on Father’s custodial involvement, either before or after Mother’s death; the Court heard testimony from both Father and Grandmother regarding Father’s involvement that, although questioned by Aunt, is unrebutted.
“The Court also does not find it surprising that Father has not been involved in exchanges of S.L. for visitation in light of the circumstances under which Aunt came to have custody of S.L. and the subsequent orders from the JDR Court.
“Based on the evidence presented at trial, Father appears to be – and to have been – positively involved in S.L.’s life and can meet the emotional, intellectual, and physical needs of S.L. Aunt presented no evidence that Father has any history of parental misconduct, child abuse, or child neglect or that he otherwise is an unfit parent.
“Although Father does not have his own residence, he currently lives with Grandmother, who undisputedly has had a positive impact on S.L.’s life, and Aunt presented no evidence that Father and Grandmother would provide an unsuitable place for S.L. to live, especially in light of Grandmother’s testimony that she plans to secure a larger home.
“Additionally, the Court finds that Aunt did not prove that Father would provide an immoral environment or that Father is incapable of promoting the emotional and physical wellbeing of S.L.
“In sum, Aunt failed to prove, by clear and convincing evidence, that S.L. would be harmed while in Father’s custody because Father is an unfit parent.”
Abandonment
“[A] nonparent can overcome the parental presumption by proving, by clear and convincing evidence, that the child would be harmed because the biological parent abandoned the child. …
“[T]he Court heard unrebutted testimony from both Father and Grandmother that Father is present – and has been present – during Grandmother’s visitation times with S.L. and that Father has played an active role in S.L.’s life.
“Additionally, although Aunt and the maternal relatives had not met Father prior to Mother’s death, they concede that Grandmother has played an active role in S.L.’s life. Aunt’s speculation about Father’s alleged absence from S.L.’s life simply is insufficient to establish actual harm.”
Special circumstances
“In light of the Court’s finding that Father neither is an unfit parent nor abandoned S.L., Aunt must prove that there are ‘special facts and circumstances … constituting an extraordinary reason’ to overcome the parental presumption and deny Father custody of his child. …
“More specifically, Aunt must prove, by clear and convincing evidence, that these special facts and circumstances would actually harm S.L. …
“The Court finds that Aunt failed to meet this high burden. …
“S.L. has no special needs or developmental delays, and Aunt has provided no credible evidence that Father is unable to meet S.L.’s emotional, physical, or intellectual needs going forward, especially with Grandmother’s assistance.
“Additionally, although Aunt questioned Father’s previous involvement in S.L.’s life, Father and Grandmother both testified that Father is and has been involved in S.L.’s life.
“Aunt also takes issue with awarding Father custody because of his prior employment and housing instability, but Father currently is employed and has a housing plan.
“In any case, the Court’s focus here is evaluating Father’s present ability to care for S.L. …
“Aunt presented no evidence, by way of expert testimony or otherwise, that S.L. would suffer actual harm if placed under Father and Grandmother’s custody.”
Visitation
“Aunt also filed a petition seeking visitation with S.L. As an initial matter, the Court finds that Aunt is a statutory ‘person with a legitimate interest’ for purposes of seeking court-ordered visitation. …
“Aunt presented no evidence at trial, via expert testimony or otherwise, to demonstrate that S.L.’s health or welfare would be jeopardized if Aunt were not granted visitation.
“The Court notes that although Aunt has had custody of S.L. for the past year, she apparently was not significantly involved in S.L.’s life prior to Mother’s death, as she lived in Georgia.
“Despite testifying that she had frequent contact with Mother and S.L. prior to that time and that Mother requested her to care for S.L. if anything happened to Mother, these are disputed facts, which the Court finds Aunt has not proven.
“Based on the totality of the evidence presented, the Court acknowledges that S.L. may be adversely affected by the lack of Aunt’s visitation.
“That is not the test, however. Simply stated, Father has the fundamental right to raise S.L.as he sees fit, which includes the power to preclude court-ordered visitation by Aunt if he so chooses. …
“In sum, the Court finds that Aunt has not alleged any facts that support that S.L. will be actually harmed without visitation by Aunt.
“Therefore, the Court finds that Aunt has failed to prove, by clear and convincing evidence, that S.L. will be actually harmed if Aunt is denied visitation.”
Aunt’s custody petition is denied. Father’s petition for joint custody with Grandmother is granted. Aunt’s petition for visitation is denied.
Handy, et al v. Eaton, Case No. CJ22-133-00 & 134-00/01/02, Feb. 24, 2023. City of Norfolk Circuit Court (Lannetti). Michael T. Pallai, Ashleigh M. Tripp for the parties. Robert and Ramona Handy, pro se. VLW 023-8-016, 21 pp.
