Kimberly Anne Weig v. Lawrence George Weig, Jr. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
KIMBERLY ANNE WEIG
MEMORANDUM OPINION * BY
v. Record No. 0756-96-2 CHIEF JUDGE NORMAN K. MOON
FEBRUARY 4, 1997
LAWRENCE GEORGE WEIG, JR.
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
J. Peyton Farmer, Judge
Owaiian M. Jones (Law Offices of Owaiian M.
Jones, on brief), for appellant.
No brief or argument for appellee.
Appellant, Kimberly Anne Weig, appeals the March 4, 1996
custody order of the circuit court. Appellant contends: (1) the
evidence failed to establish by clear and convincing evidence
that she voluntarily relinquished custodial rights to her son;
(2) no extraordinary circumstances existed which would overcome
the presumption favoring the biological parent; (3) the evidence
failed to establish that appellee, the nonparent, provided all
day-to-day care and exhibited excellent parenting skills; (4) the
evidence failed to establish that appellee had obtained custody
because the temporary custody order was without prejudice; and
(5) the evidence failed to establish that it would be in the
child's best interests for appellee to have custody. We find
that the trial court properly found that special facts and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
circumstances existed which warranted granting custody to
appellee. Accordingly, we affirm the trial court's award of
custody to appellee.
Appellant and appellee were married on February 15, 1984, in
Maryland. On October 2, 1990, appellant gave birth to her son,
Ryan. The circuit court ruled in its May 12, 1995 divorce decree
that Ryan was not a child of the marriage. While appellee is
listed on Ryan's birth certificate as his father, the parties
have stipulated that Ryan is not the appellee's biological child.
After Ryan's birth, the parties resided together as a family
until February, 1994. At that time, because of continuing
differences between the parties, appellant left the marital
residence and moved from Spotsylvania County to Williamsburg,
Virginia. The parties entered into a marital settlement
agreement dated February 3, 1994. Appellant also decided that
because of her financial situation and her desire to go to school
full time, it would be in Ryan's best interest to leave him in
appellee's custody. On March 30, 1994, appellee filed a pro se
petition for divorce in the Circuit Court of Spotsylvania County.
On May 12, 1995, the circuit court entered its decree of divorce
a vinculo matrimonii, in which the court retained jurisdiction
over the matters of custody and child support.
During the hearing, appellant acknowledged that since her
departure from the marital residence in February, 1994, appellee
provided for all of Ryan's physical and emotional needs.
Appellant further acknowledged that appellee has actively
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facilitated appellant's visitation with Ryan and that "[a]ppellee
spends a vast amount of time and energy on Ryan." At trial,
testimony was presented indicating that "Ryan appeared to be
[a]ppellee's number one concern, and that Ryan appeared to be a
major factor in all of [a]ppellee's decisions." Evidence was
also received that "[a]ppellee did an excellent job of taking
care of Ryan, has excellent parenting skills, and was appropriate
in his behavior with Ryan." Appellant testified that appellee
had, however, exhibited violent tendencies in the past and that
appellee was "too controlling" of appellant's visits with Ryan.
Appellant did, however, recognize that these "violent tendencies"
had been displayed prior to her leaving Ryan in appellee's
custody. No evidence was presented suggesting that appellee ever
physically abused Ryan.
Appellee argued that appellant should not have custody of
Ryan because her financial and home situations were not stable
and because appellant spends time with people who abuse drugs and
alcohol. Appellee further argued that appellant should not have
custody because Ryan has been having emotional difficulties
dealing with the parties' separation, which necessitated his
enrollment in a special preschool and visitation with a
counselor. Appellee asserts that removal of Ryan from these
programs will be detrimental and that appellant has no plans for
ensuring that Ryan continues to have access to counseling
services.
In its letter opinion of October 31, 1995, the circuit court
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awarded custody to appellee, finding that the evidence
established that appellant made a voluntary relinquishment and
further that appellee proved by clear and convincing evidence
that extraordinary circumstances existed which overcame the
presumption favoring the biological mother. Appellant requested
a rehearing, which was held on March 4, 1996. At that time, the
court affirmed its opinion letter, entering a child custody and
support order awarding appellee custody.
"In all child custody cases, including those between a
parent and nonparent, `the best interests of the child are
paramount and form the lodestar for the guidance of the court in
determining the dispute.'" Bailes v. Sours, 231 Va. 96, 99, 340
S.E.2d 824, 826 (1986) (quoting Walker v. Brooks, 203 Va. 417,
421, 124 S.E.2d 195, 198 (1962)). Where a natural parent and
nonparent engage in a custody dispute, the presumption is that
"the best interest of the child will be served when in the
custody of the natural parent." Mason v. Moon, 9 Va. App. 217,
220, 385 S.E.2d 242, 244 (1989). Accordingly, "the rights of the
[natural] parents may not be lightly severed but are to be
respected if at all consonant with the best interest of the
child." Wilkerson v. Wilkerson, 214 Va. 395, 397, 200 S.E.2d
581, 583 (1973). To overcome the presumption favoring a natural
parent, the nonparent must prove by clear and convincing evidence
that: "(1) the parents are unfit; (2) a court previously has
granted an order of divestiture; (3) the parents voluntarily
relinquished custody; (4) the parents abandoned the child; or (5)
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special facts and circumstances constitute extraordinary reasons
to take the child from the parents." Mason, 9 Va. App. at 220,
385 S.E.2d at 244 (citing Bailes, 231 Va. at 100, 340 S.E.2d at
827).
Here, the circuit court specifically considered the five
factors delineated in Bailes, and found that the "evidence
establishes that [appellant] made a voluntary relinquishment and
. . . that [appellee] has proved by clear and convincing evidence
that there are extraordinary circumstances which overcome the
presumption favoring the mother." We need not reach the issue of
whether voluntary relinquishment occurred because we find the
evidence sufficient to sustain the trial court's finding of
special facts and circumstances.
In determining whether sufficient evidence has been
presented to rebut the presumption in favor of the natural parent
having custody, the trial court must consider all the evidence
before it. Id. at 220, 385 S.E.2d at 244. Further, on appeal,
the trial court's findings are entitled to great weight and will
not be disturbed unless plainly wrong or unsupported by the
evidence. Bailes, 231 Va. at 100, 340 S.E.2d at 827. Here, the
trial court indicated those special facts and circumstances it
considered, finding that:
The child has resided with [appellee] since
February, 1994. Ryan has some emotional
problems and [appellee] has arranged for
counseling. [Appellee] has provided all of
the day-to-day care for Ryan since he
obtained custody and has exhibited excellent
parenting skills. He has made personal
sacrifices in trying to do what was best for
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the child.
In addition, the record indicates that during the more than two
year period in which Ryan resided with appellee, appellant
averaged visiting her son only twice a month and provided little
if any emotional and financial support for her child.
Evidence of Ryan's emotional problems, which are being
addressed by appellee, combined with evidence of Ryan's complete
dependence on appellee and appellant's lack of involvement with,
or support of, Ryan for a period of more than two years is
sufficient to sustain the trial court's finding of special facts
and circumstances.
Once the trial court found that special facts and
circumstances existed which warranted awarding custody to
appellee, the burden shifted to appellant to prove that it would
nevertheless be in the best interests of the child for her to
have custody. Smith v. Pond, 5 Va. App. 161, 163, 360 S.E.2d
885, 886 (1987). Appellant offered no such proof in this case.
To the contrary, appellant acknowledged appellee's love for her
son, his excellent parenting skills, and the time and energy
appellee has spent in caring for Ryan. The evidence is
sufficient to sustain the trial court's finding that Ryan's best
interests are served by awarding continued custody to appellee.
Accordingly, we affirm the trial court's decision.
Affirmed.
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