Parent and Child – Stepmother awarded custody of stepchildren over father’s objection

Where husband’s years-long affair resulted in two children outside of marriage, and wife thereafter became their primary caregiver after husband gained custody, it was in their stepchildren’s best interests to award her custody rights following their divorce.

Background

Matthew and Jennifer May married in 2008. They had two children within the marriage. But during the marriage, Matthew had a years-long affair with Lana Capehart that bore two more children: M.M. and J.M.

After Lana developed a neurological impairment in 2019, Matthew obtained primary physical custody of the children. Throughout Matthew and Jennifer’s marriage, Jennifer was the primary caregiver to her biological children, but she additionally became the primary caregiver to M.M. and J.M. after Matthew gained custody.

In 2022, Jennifer filed for divorce. She sought sole legal and physical custody of her biological children, and third-party custody of M.M. and J.M., with Lana’s agreement. The circuit court’s final divorce decree awarded Jennifer primary physical and joint legal custody of both her biological children and M.M. and J.M., with visitation to Matthew.

Actual harm

Matthew challenged the circuit court’s lack of finding that the children would suffer actual harm unless Jennifer received custody. However Matthew did not raise the issue of actual harm until oral argument. He assigns error to the circuit court’s award of custody to Jennifer based on insufficient evidence. He did not raise the issue of actual harm before the circuit court, nor on brief on appeal. That argument is waived on appeal.

Best interests

Matthew contends that the circuit court awarded custody to Jennifer without clear and convincing evidence to rebut the presumption that parental custody, with Matthew, would serve the best interest of the children. The court disagrees.

The record supports the circuit court’s findings that Jennifer presented clear and convincing evidence of “special facts and circumstances” to rebut the parental presumption and that awarding Jennifer custody rights would serve the best interest of the children. Matthew acknowledges that Jennifer is a “person with a legitimate interest” under Code § 20-141.1, and indeed, although Matthew fathered M.M. and J.M. in an extramarital affair, Jennifer has cared for them as her own since they moved into the marital home in 2019.

She continued to mother the two after she and Matthew separated, when Matthew left the marital home. She has sought therapy to strengthen the bond between herself and the children, and between the children and their siblings, treating M.M. and J.M. no differently than her biological children. M.M. and J.M. go to Jennifer for comfort and support—they call her “mom.”

The guardian ad litem recommended that Jennifer retain primary physical custody over the children due to their close relationship with their siblings and emphasized that the custody arrangement should be the same for all four siblings. Evidence at the custody hearing supported that recommendation. Separation from Jennifer and their siblings following Matthew’s petition for a protective order distressed M.M. and J.M.

The children’s biological mother, Lana, had observed Jennifer’s care for the children and advocated for Jennifer’s custody. Matthew’s parents and family friends praised Jennifer’s mothering of the children.

“So ‘long as the evidence in the record supports’ the circuit court’s determination and it ‘has not abused its discretion, its ruling must be affirmed on appeal.’” Here, the record supports the circuit court’s findings that Jennifer rebutted the parental presumption through clear and convincing evidence of “special facts and circumstances” and that awarding Jennifer custody rights would serve the best interest of the children. Accordingly, the circuit court did not abuse its discretion by awarding Jennifer custody.

Affirmed.

May v. May, Case No. 0060-25-2, May 19, 2026. CAV (unpublished opinion) (Ortiz). From the Circuit Court of Spotsylvania County (Glover). Charles E. Powers (Alvin A. Lockerman, Jr.; Stiles Ewing Powers PC, on brief), for appellant. Mary Elizabeth White (Shana Gertner, Guardian ad litem for the minor children; Law Offices of Mary Elizabeth White, P.C.; Shana Gertner, PLLC, on brief), for appellee. VLW 026-7-203. 11 pp.

Full-Text Opinion
VLW 026-7-203