                     COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia

SHARON LYNNE BOTTOMS

v.         Record No. 2157-96-2          MEMORANDUM OPINION * BY
                                         JUDGE RICHARD S. BRAY
PAMELA KAY BOTTOMS                           JULY 29, 1997

            FROM THE CIRCUIT COURT OF HENRICO COUNTY
                  Buford M. Parsons, Jr., Judge

          Donald K. Butler (Player B. Michelson;
          Michael Adams; Matt Coles; Mary Bauer;
          Morano, Colan & Butler; Lesbian and Gay
          Rights Project American Civil Liberties
          Union; American Civil Liberties Union of
          Virginia, on briefs), for appellant.
          Torrence M. Harman (Harman & Harman, P.C., on
          brief), guardian ad litem for Kenneth Tyler
          Doustou.

          R. R. Ryder for appellee.



     The instant proceedings were commenced in the Henrico County

Juvenile and Domestic Relations District Court upon petitions of

Sharon Lynne Bottoms (mother) praying (1) for custody of her

infant son, previously awarded to his maternal grandmother,

Pamela Kay Bottoms (grandmother), by decree of the trial court,

and (2) an order requiring grandmother to "show cause why she

should not be held in contempt . . . for her repeated violations

of the visitation terms" of such decree.    In response,

grandmother petitioned for termination or further restriction of

mother's rights of visitation.

     Following appointment of a guardian ad litem for the child,
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the district court conducted an ore tenus hearing, dismissed the

"show cause" and declined to disturb either the custody or

visitation provisions of the existing decree.   Mother appealed to

the circuit court, expressly withdrawing her petition for custody

and challenging only the visitation adjudication.   The trial

court subsequently also conducted an ore tenus hearing, which

culminated in a decree dismissing mother's "show cause" petition

and substantially modifying the terms of visitation.
     On appeal to this Court, mother challenges those provisions

of such decree which delimit the frequency, duration and situs of

both regular and holiday visitation and expressly prohibit all

"contact . . . , including verbal contact[,]" between the child

and April Wade, mother's female housemate and sexual partner. 1

Mother complains that such constraints improperly restricted

access to the child, contrary to the rights and interests of both

mother and child, and resulted from the trial court's

unwillingness to consider relevant evidence in accordance with

statute.   Mother also contends that the court erroneously

declined to order mother, grandmother, and child "into

counseling."   We agree that the court failed to consider proper

evidence and reverse the disputed decree.

     The parties are fully conversant with the record, and a
     1
      Mother's relationship with April Wade was fully discussed
by this Court and the Supreme Court of Virginia in Bottoms v.
Bottoms, 18 Va. App. 481, 444 S.E.2d 276 (1994), rev'd, 249 Va.
410, 457 S.E.2d 102 (1995), and remains substantially unchanged
on this record.



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recitation of the facts is unnecessary to this memorandum

opinion.

      It is well established that "[t]he authority vested in a

trial court to decide issues concerning the . . . custody . . .

[and] visitation rights of the non-custodial parent . . . is a

matter of judicial discretion which courts must exercise with the

welfare of the children as the paramount consideration."

Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10,

11 (1986); see Code §§ 20-107.2, 20-124.2.   Guided by those

factors enumerated in Code § 20-124.3, the court must fashion

"visitation arrangements" which at once promote the "best

interests" of the infant, Code § 20-124.2, and the "desirable

objective . . . that the child . . . continue to receive the

noncustodial parent's affection and nurture through the mechanism

of visitation."    M.E.D. v. J.P.M., 3 Va. App. 391, 397, 350

S.E.2d 215, 219 (1986).   However, "while the legal rights of a

parent should be respected . . . , those . . . rights may be

disregarded if demanded by the interests of the child."     Bottoms

v. Bottoms, 249 Va. 410, 419, 457 S.E.2d 102, 108 (1995).

      Manifestly, "[e]ach case . . . require[s] . . . considerable

judgment in placing conditions upon the frequency, duration,

place, and extent of visitation" appropriate to the particular

circumstances.    Eichelberger, 2 Va. App. at 413, 345 S.E.2d at

12.   The court must carefully scrutinize the entire record,




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weighing the pertinent statutory factors and "[s]uch other

[evidence] as the court deems necessary and proper to the

determination," Code § 20-124.3, including "the nature of the

home environment and moral climate" which may affect the child.

Bottoms, 249 Va. at 419, 457 S.E.2d at 107; see Carrico v.

Blevins, 12 Va. App. 47, 50-51, 402 S.E.2d 235, 237 (1991).

Having once adjudicated the issues of custody and visitation, the

court retains jurisdiction to modify a decree "when subsequent

events render such action appropriate for the child's welfare."
Eichelberger, 2 Va. App. at 412, 345 S.E.2d at 12; see Code

§ 20-108.

     Here, in restricting mother's visitation with the child

"solely" to her residence and prohibiting "contact . . . in any

manner" with April Wade, the court declared that it was "bound to

[the] precedence" of Roe v. Roe, 228 Va. 722, 324 S.E.2d 691

(1985).   In Roe, the Court expressly "declined to hold that every

lesbian mother or homosexual father is per se an unfit parent,"

noting that "conduct[] in the child[]'s presence" and the
attendant "impact of [such] relationship upon [the] child" were

the relevant inquiries, not simply the sexual status of the

parent or parents.   Id. at 727, 324 S.E.2d at 693-94.   Mindful,

however, that "'[t]he moral climate in which children are to be

raised'" warrants "'the most careful consideration in a custody

proceeding,'" the Court concluded that, "[i]n the circumstances




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of this case," the "best interests of the child" 2 dictated

divestiture of custody from the homosexual father, subject to a

residual right of specifically limited visitation.    Id. at 726,

728, 324 S.E.2d at 693, 694 (emphasis added) (quoting Brown v.

Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977)).

     The issue of parental sexual preference was again undertaken

by the Supreme Court in reviewing an earlier custody decree in

the instant cause.   After reaffirming that mother's sexual

persuasion did not render her "per se an unfit parent," the court
recognized such circumstance as reflective of the "home

environment and moral climate," an "important consideration."

Bottoms, 249 Va. at 419, 457 S.E.2d at 107-08 (emphasis added);

accord Doe v. Doe, 222 Va. 736, 748, 284 S.E.2d 799, 806 (1981);

Carrico, 12 Va. App. at 50-51, 402 S.E.2d at 237.

     Thus, both Code § 20-124.3 and controlling appellate

decisions clearly instruct that the parental rights of custody

and related visitation suitable to each instance must evolve from

a myriad of considerations, all calculated to exalt and promote

the best interests of the child.   While issues of adult sexuality

and related behavior are significant to an adjudication of

visitation, such factors must be assessed by the court together

with other relevant circumstances and balanced in a visitation

     2
      The record in Roe indicated that the child was "unhappy" in
her homosexual father's home, "hate[d]" her father's companion
and wished a return to her mother. 228 Va. at 724, 324 S.E.2d at
692.



                               - 5 -
arrangement which both benefits and protects the child.

     Here, however, the trial court misconstrued Roe to require a

disposition based solely upon mother's sexual status, implicitly

ignoring evidence of other pertinent statutory factors and

without regard to evidence of the impact of attendant conduct on

the child.   The disputed order, therefore, did not emanate from a

proper analysis of relevant evidence.     Similarly, the trial court

erroneously declined to consider evidence of the relationship

between mother and grandmother.   Clearly, the interaction of

mother and grandmother, and its effects upon mother's visitation

with the child and upon the child, is pertinent to the court's

resolution of the instant petition and a factor contemplated by

the provisions of Code § 20-124.3.
     Accordingly, we reverse the decree and remand to the trial

court for reconsideration of the evidence consistent with this

opinion, including any additional evidence deemed appropriate by

the court to a proper disposition of the petitions.
                                       Reversed and remanded.




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