                                                                      Tuesday                 13th

               May, 2008.


Joseph C. Florio,                                                                                    Appellant,

against             Record No. 2424-06-1
                    Circuit Court Nos. CH02000025-01 through CH02000027-01

Barbara E. Clark, William B. Clark
 and Joyce Childers,                                                                                 Appellees.


                                         Upon a Rehearing En Banc

              Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey,
                              McClanahan, Haley, Petty, Beales and Millette

               Kenneth B. Murov for appellant.

               Breckenridge Ingles (Julianne B. Dias, Guardian ad litem for the minor
               child; Martin, Ingles & Ingles, Ltd.; Foard & Dias. P.C., on brief), for
               appellees.


       By memorandum opinion dated October 30, 2007, a divided panel of this Court affirmed the

judgment of the trial court. We stayed the mandate of that decision and granted rehearing en banc. Upon

rehearing en banc, it is ordered that the stay of this Court’s October 30, 2007 mandate is lifted and the

judgment of the trial court is affirmed for the reasons stated in the majority memorandum opinion in Joseph

C. Florio v. Barbara E. Clark, William B. Clark and Joyce Childers, No. 2424-06-1 (Va. Ct. App. Oct. 30,

2007), and we adopt that opinion as our own.

       Judge Humphreys would reverse the trial court for the reasons set forth in the dissenting opinion

of the October 30, 2007 panel.
This order shall be certified to the trial court.

                         A Copy,

                                  Teste:
                                                          Cynthia L. McCoy, Clerk


                                   By:
                                                           Deputy Clerk




                                                    -2-
VIRGINIA:
           In the Court of Appeals of Virginia on Tuesday          the 4th day of December, 2007.


Joseph C. Florio,                                                                               Appellant,

against             Record No. 2424-06-1
                    Circuit Court Nos. CH02000025-01 through CH02000027-01

Barbara E. Clark, William B. Clark
and Joyce Childers,                                                                             Appellees.


                                 Upon a Petition for Rehearing En Banc

                                           Before the Full Court


       On November 9, 2007 came the appellant, by counsel, and filed a petition requesting that the

Court set aside the judgment rendered herein on October 30, 2007, and grant a rehearing en banc thereof.

       On consideration whereof, the petition for rehearing en banc is granted, the mandate entered

herein on October 30, 2007 is stayed pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

       Notwithstanding the provisions of Rule 5A:35, the following briefing schedule hereby is

established: Appellant shall file an opening brief upon rehearing en banc within 21 days of the date of

entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the

date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc

within 14 days of the date on which the appellee’s brief is filed. The appellant shall attach as an

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellant shall file twelve additional copies of the

appendix previously filed in this case.


                                           A Copy,

                                                   Teste:

                                                                       Cynthia L. McCoy, Clerk

                                                   By:

                                                                       Deputy Clerk




                                                     -2-
                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Senior Judge Willis
Argued at Chesapeake, Virginia


JOSEPH C. FLORIO
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2424-06-1                                   JUDGE JERE M. H. WILLIS, JR.
                                                                  OCTOBER 30, 2007
BARBARA E. CLARK, WILLIAM B. CLARK
 AND JOYCE CHILDERS


                   FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                            Von L. Piersall, Jr., Judge Designate

                 Kenneth B. Murov for appellant.

                 Breckenridge Ingles (Julianne B. Dias, Guardian ad litem for the
                 minor child; Martin, Ingles & Ingles, Ltd.; Foard & Dias, P.C., on
                 brief), for appellees.


       Joseph C. Florio appeals the award of legal and physical custody of his child to the

child’s maternal aunt, Barbara E. Clark, and her husband, William B. Clark. He contends the

trial court (1) failed to give due regard to the primacy of his parental relationship with his child

as required by Code § 20-124.2(B) and (2) erred in its custody determination because the Clarks

“did not sustain their burden to prove the existence of clear and convincing evidence that the best

interests of [the child] required that legal and primary physical custody be awarded to” them.

We affirm the judgment of the trial court.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                               Background

          On appeal, we view the evidence and all reasonable inferences in the light most favorable

to the Clarks as the parties prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990).

          In January 1996, Mary Childers gave birth to a child fathered by Florio. By the time the

child was born, the unmarried parents had separated. On April 17, 1996, with the consent of

both Mary Childers and Florio, the juvenile and domestic relations district court awarded sole

physical custody of the child to Mary Childers. Later that year, Mary Childers moved in with

her sister and brother-in-law, the Clarks. Seven months later, she moved to her own residence a

short distance away. In June 2001, she became ill and her mother, Joyce Childers, moved into

her home to help her. When she was hospitalized in January 2002, she placed the child with the

Clarks.

          In March 2002, Mary Childers died. The Clarks and Florio sought custody of the child.

On October 6, 2004, the trial court issued a final order awarding custody to the Clarks and Joyce

Childers. Florio appealed that ruling to this Court.

          In Florio v. Clark, Record No. 2633-04-1, slip op. at 12-13 (Va. Ct. App. July 26, 2005)

(Florio I), we held “that the trial court abused its discretion in excluding the updated home study

and in excluding the social worker’s testimony relating to the statutory best-interests factors.”

We reversed and remanded the case for a new custody hearing “[b]ecause these erroneous

rulings sufficiently tainted the evidence before the trial court, especially as the excluded evidence

pertained to the child’s best interests . . . .” Id., slip op. at 13.

          On remand, the trial court awarded custody of the child to the Clarks. This appeal

followed.




                                                    -2-
                                              Analysis

       “In issues of child custody, ‘the court’s paramount concern is always the best interests of

the child.’” Vissicchio v. Vissicchio, 27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998)

(quoting Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990)). See Code

§ 20-124.2(B). “Because the trial court heard the evidence at an ore tenus hearing, its decision

‘is entitled to great weight and will not be disturbed unless plainly wrong or without evidence to

support it.’” Piatt v. Piatt, 27 Va. App. 426, 432, 499 S.E.2d 567, 570 (1998) (quoting Venable

v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986)). “Absent clear evidence to the

contrary in the record, the judgment of a trial court comes to an appellate court with a

presumption that the law was correctly applied to the facts.” Bottoms v. Bottoms, 249 Va. 410,

414, 457 S.E.2d 102, 105 (1995).

       In determining the best interests of a child, the trial court must consider the statutory

factors identified in Code § 20-124.3. “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. . . .” Code § 20-124.2(B).

       “‘In a custody dispute between a parent and non-parent, the law presumes that the child’s

best interests will be served when in the custody of its parent.’” Bottoms, 249 Va. at 413, 457

S.E.2d at 104 (quoting Judd v. Van Horn, 195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)).

“Although the presumption favoring a parent over a non-parent is a strong one, it is rebutted

when certain factors are established by clear and convincing evidence.” Bailes v. Sours, 231 Va.

96, 100, 340 S.E.2d 824, 827 (1986) (footnote omitted). Those factors include: (1) parental

unfitness, Forbes v. Haney, 204 Va. 712, 715-16, 133 S.E.2d 533, 535-36 (1963); (2) a previous

order of divestiture, McEntire v. Redfearn, 217 Va. 313, 316, 227 S.E.2d 741, 743 (1976);

                                                -3-
(3) voluntary relinquishment, Shortridge v. Deel, 224 Va. 589, 594, 299 S.E.2d 500, 503 (1983);

(4) abandonment, Patrick v. Byerley, 228 Va. 691, 695, 325 S.E.2d 99, 101 (1985); and

(5) special facts and circumstances, Wilkerson v. Wilkerson, 214 Va. 395, 397-98, 200 S.E.2d

581, 583 (1973).

       “Once the presumption favoring parental custody has been rebutted, the parental and

non-parental parties stand equally before the court, with no presumption in favor of either, and

the question is the determination of the best interests of the child according to the preponderance

of the evidence.” Walker v. Fagg, 11 Va. App. 581, 586, 400 S.E.2d 208, 211 (1990).

       “The circumstances that might justify denying a parent custody of his or her child in

favor of a non-parent will vary from case to case.” Brown v. Burch, 30 Va. App. 670, 687, 519

S.E.2d 403, 411 (1999).

       The trial court concluded that the Clarks had proved by clear and convincing evidence

special facts and circumstances rebutting the presumption in favor of Florio’s custody and

requiring placement of the child with them. The evidence supports this holding.

       Florio initially agreed that the child’s mother, Mary Childers, was properly and should be

the child’s custodian. In her will, Mary Childers nominated her sister, Mary Clark, as the child’s

guardian and nominated her mother, Joyce Childers, as alternate guardian. While this was not a

determining factor, it was a properly considered circumstance. By awarding custody of the child

to the Clarks, the trial court complied with the directive of his mother, the person Florio had

agreed was best suited to be in charge of his upbringing and welfare.

       Florio failed to document his employment or to verify the stability and dependability of

his income. He stated that he works with his father operating a kennel, but admitted he receives

neither a paycheck nor a regular draw. He had filed no tax returns acknowledging his claimed

income. Although he testified he was in the process of building his own residence, he currently

                                                -4-
had no home and lived with his father. During Mary Childers’ life, he did not support the child

and had limited contact with him.

       During his entire life, the child has enjoyed a close relationship with the Clarks and has

resided with them for significant periods of time. When he was six months old, he and his

mother moved in with the Clarks, who helped care for him. When he and his mother moved a

short distance away to their own residence, the Clarks maintained close contact with him,

vacationing together and seeing him two to three times a week. During this time, William Clark

spent time with the child, helped him with his homework, and took him to soccer practice. When

his mother became ill in June 2001, the child lived with Joyce Childers, and the Clarks assisted

with his daily care. As Mary Childers’ condition worsened, the Clarks provided the child

additional care. He moved in with them for the three months prior to his mother’s death.

Following his mother’s death, he continued to live with the Clarks, except for a three-month

period, during which he resided with Florio, who refused to allow him contact with the Clarks or

Joyce Childers.

       Prior to Mary Childers’ death, Florio had little contact with the child. He exercised his

visitation infrequently. He provided no support. He was not involved in the child’s schooling,

extracurricular activities, or general upbringing. Although his contact with the child increased

after Mary Childers’ death, he remains only slightly involved in the child’s daily life. He has not

demonstrated that he can meet the child’s educational and emotional needs. While he lived with

Florio, the child exhibited fatigue and his schoolwork suffered.

       The child has a settled position in the Clarks’ household. He has frequent contact with

his grandmother, Joyce Childers. The Clarks have successfully addressed and served his special

needs. He struggled during his early school years. The Clarks explored the reasons for this, and

through medication, tutoring, and heavy involvement in the child’s schooling, have addressed

                                               -5-
them. They work closely with the child and routinely meet with his teachers. The child’s

schoolwork and ability to concentrate have improved greatly.

         In every case concerning child custody and visitation, the trial court’s judgment is guided

by a single, unvarying standard. The welfare of the child is the primary, paramount, and

controlling consideration. All other matters are subordinate. See Mullen v. Mullen, 188 Va.

259, 269, 49 S.E.2d 349, 354 (1948). That determination lies within the trial court’s discretion

and is reversible only upon a showing that the court abused its discretion. See M.E.D. v. J.P.M.,

3 Va. App. 391, 398, 350 S.E.2d 215, 220 (1986).

         Having considered the totality of the circumstances present in this case, we hold that the

trial court did not err in finding clear and convincing evidence of special and unique

circumstances rebutting the presumption in favor of awarding custody to Florio and requiring

denial of custody to him. We further hold that the trial court did not err in finding that the

child’s best interests would be served by granting custody to the Clarks and in making that

award.

                                                                                           Affirmed.




                                                -6-
Humphreys, J., dissenting.

          I respectfully dissent from the analysis and holding of the majority. In this case, the trial

court improperly applied a “best interests of the child” analysis in making a finding of “special

facts and circumstances.” Because I believe the evidence was insufficient as a matter of law for

a finding of special facts and circumstances, I would reverse the judgment of the trial court, and

remand the case for further proceedings consistent with this analysis.

          It is true that “[i]n all child custody cases, including those between a parent and

non-parent, the best interests of a child are paramount and form the lodestar for the guidance of

the court in determining the dispute.” Mason v. Moon, 9 Va. App. 217, 220, 385 S.E.2d 242,

244 (1989) (quoting Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986)). However, “in

custody disputes between a natural parent and a non-parent, the law presumes the best interest of

the child will be served when in the custody of the natural parent.” Id. (emphasis added). To

overcome the presumption favoring the 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) special facts and circumstances constitute extraordinary reasons to take the child from the

parent, or parents. Bailes, 231 Va. at 100, 340 S.E.2d at 827. In this case, the trial court relied

solely upon the last rationale to support its decision to award custody to the Clarks.

          “[C]ircumstances that might [constitute extraordinary reasons to] deny[] a parent custody

of his or her child in favor of a non-parent will vary from case to case.” Brown v. Burch, 30

Va. App. 670, 687, 519 S.E.2d 403, 411 (1999). However, some factors a court may consider

include

                 1) the age of the child when care was assumed by the non-parent;
                 2) the period of time elapsed between the parent’s loss of custody
                 and his or her attempt to regain custody; 3) the intensity and
                 genuineness of the parent’s desire to obtain custody of the child;
                                               -7-
                and 4) the stability and certainty of the child’s future in the
                parent’s custody.

Id.

       A finding that the presumption has been rebutted does not, ipso facto, mean that custody

goes to the nonparent. See Walker v. Fagg, 11 Va. App. 581, 585-86, 400 S.E.2d 208, 211

(1991). Indeed, “[o]nce the presumption favoring parental custody has been rebutted, the

parental and non-parental parties stand equally before the court, with no presumption in favor of

either, and the question [only then becomes] the determination of the best interest of the child

according to the preponderance of the evidence.” Id. at 586, 400 S.E.2d at 211.

       Thus, a trial court is first required to determine, as a threshold question, whether or not

the nonparent has overcome the presumption that the best interests of the child are served by

placing the child with the parent. If the trial court finds that the nonparent has not overcome this

presumption, then the trial court need proceed no further and must award custody to the parent.

If the trial court finds that the nonparent has overcome the presumption, then the trial court must

proceed to make a finding as to which party would better suit the best interests of the child, and

award custody to that party.

       In this case, the trial court reversed the order in which the requisite findings should have

been made, stating in its analysis:

                I’m concerned about the best interest of the child. I have
                considered the statute, especially the requirements of [Code
                § 20-124.3], 1 and also the other statutes that are applied and I’ve

       1
           Code § 20-124.3 provides:

                        In determining best interests of a child for purposes of
                determining custody or visitation arrangements including any
                pendente lite orders pursuant to § 20-103, the court shall consider
                the following:

                1. The age and physical and mental condition of the child, giving
                due consideration to the child’s changing developmental needs;
                                                -8-
               considered the facts and the law . . . [a]nd I think there are . . .
               special facts and circumstances in this case.

       The trial court then listed the evidence it believed supported its finding of special facts

and circumstances. Specifically, the trial court noted the fact that Florio did not originally have

custody of the child, and had not participated much in supporting the child when the child was



               2. The age and physical and mental condition of each parent;

               3. The relationship existing between each parent and each child,
               giving due consideration to the positive involvement with the
               child’s life, the ability to accurately assess and meet the emotional,
               intellectual and physical needs of the child;

               4. The needs of the child, giving due consideration to other
               important relationships of the child, including but not limited to
               siblings, peers and extended family members;

               5. The role that each parent has played and will play in the future,
               in the upbringing and care of the child;

               6. The propensity of each parent to actively support the child’s
               contact and relationship with the other parent, including whether a
               parent has unreasonably denied the other parent access to or
               visitation with the child;

               7. The relative willingness and demonstrated ability of each parent
               to maintain a close and continuing relationship with the child, and
               the ability of each parent to cooperate in and resolve disputes
               regarding matters affecting the child;

               8. The reasonable preference of the child, if the court deems the
               child to be of reasonable intelligence, understanding, age and
               experience to express such a preference;

               9. Any history of family abuse as that term is defined in
               § 16.1-228. If the court finds such a history, the court may
               disregard the factors in subdivision 6; and

               10. Such other factors as the court deems necessary and proper to
               the determination.

               The judge shall communicate to the parties the basis of the
               decision either orally or in writing.

                                                 -9-
with his mother. The trial court also mentioned that Florio had not helped much with the child

after Childers became ill. Instead, Childers and the child briefly moved in with the Clarks. Also

important to the trial court’s decision was the fact that Childers had designated the Clarks as the

child’s guardians in her will. The trial court also noted that Florio had been “less than forthright”

in his answers to social workers investigating the case, on his tax return statements, and in his

testimony. Finally, the trial court stressed that the child had special needs, and Florio lacked the

necessary income and health insurance to suitably address those needs. The trial court then

awarded custody to the Clarks, because they had “proven for the last several years that they

[could] be of great service to [the child,] [had] made arrangements for [] counseling, for []

education . . . [and] done all the things that a mother and father would do.” For the following

reasons, I believe the evidence is insufficient to overcome Virginia’s strong presumption in favor

of the natural parent.

       In making its decision, the trial court improperly relied on several facts that are irrelevant

as a matter of law to a finding of special circumstances. For example, the testamentary wishes of

the child’s mother are of no legal significance in supplying “special circumstances” sufficient to

overcome the presumption in favor of the father. 2 Similarly, the counseling services and other


       2
           Code § 31-2 states:

                Every parent may by his last will and testament appoint [] a
                guardian of the person of his minor child . . . but no guardian of the
                person of a minor other than a parent shall be entitled to the
                custody of the person of his ward so long as either parent survives
                and such surviving parent is a fit and proper person to have the
                custody of the child.

See also Judd v. Van Horn, 195 Va. 988, 994-95, 81 S.E.2d 432, 435 (1954) (“[W]here the
custody of children is granted to their mother . . . such custody . . . only establishes the right of
custody between the two spouses during their lives, and upon the death of the mother her right
does not descend nor can it be transmitted, but that right of the father to the custody of the
children is revived, provided, of course, he is a person suitable for the custody of the children.”
(quoting 128 A.L.R. 990) (emphasis added)).
                                                - 10 -
arrangements made by the Clarks for the benefit of the child, while relevant to an analysis of

who could provide for the best interests of the child, are of no moment in overcoming the

presumption in favor of a natural parent. To hold otherwise, as the majority does, effectively

eliminates the two-step analysis required by Walker and substitutes a “bootstrap” rationale where

the child’s best interest will necessarily supply the special circumstances sufficient to deprive a

natural parent of the custody of his child. The remaining facts relied upon by the trial court in

finding the existence of “special circumstances” were that Florio did not originally have custody

of the child, that Florio lacked the necessary income and health insurance to suitably address the

child’s special needs, and that Florio had been “less than forthright” to the investigating social

worker and the IRS.

       In my view, a parent’s income level and the availability of health insurance, while also

relevant in a “best interests of the child” analysis, are not proper considerations in determining

the existence of “special circumstances” sufficient to warrant transfer of custody to a nonparent.

To hold otherwise would effectively deprive poor or less affluent parents of the benefit of the

presumption that their children should remain in their custody. Moreover, while I certainly do

not condone a lack of candor by a parent to social workers who are investigating issues relating

to the custody of their children or the misrepresentation of one’s income to the IRS, such lack of

candor in my view is insufficient standing alone to overcome the presumption in favor of a

natural parent under the clear and convincing standard.

       Put more succinctly, based on my reading of the record, it is clear to me that the trial

court improperly conflated the issues of the best interest of the child with whether the Clarks had

overcome the presumption in favor of custody with Florio by clear and convincing evidence.

This is not to say that both findings cannot be made based on the same evidence. However, the

evidence presented by the Clarks, which was specifically relied upon by the trial court, was

                                               - 11 -
insufficient as a matter of law under a “clear and convincing” standard to overcome the

presumption that custody of the child should be with his natural parent.

        In Burch, we affirmed an award of custody to a nonparent upon a showing of “special

and unique circumstances” sufficient to overcome the parental presumption. In that case, Robert

Burch married Virginia Brown in 1989 and became the stepfather of Brown’s three-year-old son.

30 Va. App. at 681-82, 519 S.E.2d at 409. During the marriage, Burch was the child’s primary

caretaker. Brown developed an addiction to alcohol and drugs, and in January 1992, took the

child and moved in with another man. Burch filed for custody in April 1992. The juvenile and

domestic relations district court granted Burch custody of the child on August 12, 1992, and

Brown appealed to the circuit court. Id. at 682, 519 S.E.2d at 409.

        Brown took no further action on her appeal until November 1996, at which time she

sought custody of her son. Id. By that time, the court found that she had “made an impressive,

. . . positive turn in her life,” and “used major initiatives as a non custodial parent to stay

involved with this young man.” Id. at 682-83, 519 S.E.2d at 409 (omission in original). The

court also found that Burch had cared for the child very well. Id. at 684, 519 S.E.2d at 410.

Furthermore, Burch fostered the child’s relationship with both Brown and the child’s natural

father, and the child excelled in music, athletics, and academics. Id. at 682-83, 519 S.E.2d at

409. In addition, the child wanted to remain with Burch, and the guardian ad litem

recommended that joint custody be placed with Burch and the child’s natural father. Id. at 683,

519 S.E.2d at 409.

        On appeal we affirmed, finding the record sufficient to support the “special and unique

circumstances” that justified the custody award. Specifically, we noted that the child “had

continuously lived with Burch for six years at the time of the custody hearing, and has now been

in Burch’s custody for more than seven years.” Id. at 688, 519 S.E.2d at 412. We also noted that

                                                 - 12 -
“[d]espite filing a timely appeal to the circuit court in August 1992, Brown took no legal action

to overturn the juvenile court’s order for more than four years.” Id. Furthermore, we noted that

the child would have been adversely affected if the circuit court transferred custody to Brown.

Id.

       The Supreme Court of Virginia also found the existence of “special circumstances”

sufficient to warrant custody to a nonparent in Bailes. In that case, Jean Bailes and Wayne Sours

married in 1971, had a son, Sean, in 1972, and divorced in 1975. 231 Va. at 97, 340 S.E.2d at

825. Although the divorce decree contained no provision concerning custody, the child lived

with his father after the divorce. Wayne remarried in October 1975, and Jean in 1977. Id.

Although Jean visited her son regularly for the first eleven months after the divorce, her visits

diminished appreciably over the years, culminating in “only ‘eight or ten’ [visits] during a

nine-year period.” Id. at 98, 340 S.E.2d at 825-26. Wayne died in 1983. Id. at 98, 340 S.E.2d at

825. After his death, Sean began to talk with his mother on the telephone and to reluctantly visit

her home every other weekend. Id. at 98, 340 S.E.2d at 826. Jean then sought custody of her

son, who did not wish to live with her. Instead, he wanted to stay with his stepmother, Elaine,

with whom he had a close relationship. Id. at 97, 340 S.E.2d at 825.

       Although both Jean and Elaine were found to be fit and proper persons to have custody,

psychological testimony indicated that moving Sean to Jean’s home would have an adverse

impact on him. Id. at 99, 340 S.E.2d at 826. Jean nevertheless argued that because she was

found to be a fit parent with a suitable home, she had a superior right to her son’s custody. The

trial court agreed that a presumption in the law favored Jean, but found that his stepmother had

overcome the presumption “by clear, cogent and convincing evidence.” Id.

       On appeal, the Supreme Court affirmed the trial court in light of the fact that Sean’s

contact with Jean “has been so limited that it is fair to say she is ‘virtually a stranger’” to him.

                                                 - 13 -
Id. at 101, 340 S.E.2d at 827 (quoting Patrick v. Byerley, 228 Va. 691, 695, 325 S.E.2d 99, 101

(1985)). The Court further noted that “Elaine ha[d] nurtured Sean as her son from infancy to

adolescence[,]” and was, to Sean, his “mother.” Id. On these facts, the Court concluded that

“the likelihood of inflicting serious harm to Sean is so clearly established by the evidence that

the presumption favoring the mother is repugnant to the child’s best interest[,]” and affirmed the

trial court’s award of custody to Elaine. Id. at 101, 340 S.E.2d at 827-28.

       Unlike Burch and Bailes, the record here contains insufficient evidence to support the

finding that the Clarks overcame the presumption that the child’s best interests would be served

in the custody of his father. Indeed, both home studies performed on Florio indicate that Florio

is a fit parent capable of providing his son a suitable home, clothing, and food, and also capable

of meeting all of his son’s physical and emotional needs. Florio, like Brown, proved to be unfit

in the child’s early years, but has made impressive and positive changes in his own life

amounting to a return to fitness. Unlike Brown, however, Florio has maintained and developed a

very close relationship with his son through consistent visitation and loving involvement.

Furthermore, Florio sought custody of his son immediately upon the death of the child’s mother

and has aggressively and diligently pursued custody of him in the courts for more than four

years. In contrast to the children in both Burch and Bailes, Florio’s son desires to live with him,

and the home studies indicate that Florio is an appropriate and suitable custodian for his son,

namely, that no harm would result from a change in custody.

       Thus, despite the Clarks’ assertion to the contrary, Florio’s case is neither “very similar”

to the facts in Burch, nor those of Bailes. Burch involved a mother who had shown no interest

whatsoever in obtaining custody of her son for more than four years, and Bailes involved a

mother who had all but abandoned her son for more than a decade. In short, the evidence in




                                               - 14 -
Florio’s case does not show by clear and convincing evidence that special facts and

circumstances constitute extraordinary reasons to take the child from Florio.

       The trial court improperly substituted a “best interests of the child” analysis for a finding

of special facts and circumstances. The evidence adduced at trial may well have been sufficient

to prove by the preponderance of the evidence that the best interests of the child favored

placement with the Clarks. However, I do not believe the evidence was sufficient to overcome

the presumption favoring placement with the natural parent by clear and convincing evidence.

Accordingly, I would reverse and remand for further proceedings consistent with this analysis.




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