                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Elder
Argued at Richmond, Virginia

WILLIAM GARY WADFORD
                                         MEMORANDUM OPINION * BY
v.   Record No. 3011-97-2               JUDGE JAMES W. BENTON, JR.
                                             JUNE 16, 1998
ANGELA DENISE RICK WADFORD
 AND RANDALL T. REDFORD


             FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
                      William L. Wellons, Judge

            Nora J. Miller (Watson & Nelson, P.C., on
            brief), for appellant.
            Carol B. Gravitt (Gravitt & Gravitt, P.C., on
            brief), for appellee.



      William Gary Wadford appeals from an order of the circuit

court granting the custody petitions of Angela Denise Rick

Wadford, his former wife, for custody of her daughter and of

Randall T. Redford for custody of the same child, Redford's

daughter.   For the reasons that follow, we find no reversible

error and affirm the order.

                                 I.

      The evidence in the record proved that William Wadford ("the

husband") and Angela Wadford ("the wife") were married in 1986.

The husband and the wife are the natural parents of a son, who

was born in 1985 before the marriage.   During the course of their

marriage, the husband and the wife separated frequently.    During

one of these separations, the wife had a relationship with

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Randall Redford.    The wife and husband later resumed living

together.    During their cohabitation, the wife had a daughter in

1989.

        The wife and the husband again separated in 1994.   During

this separation, the husband was awarded custody of the two

children.    The wife and the husband filed separate petitions for

divorce during the separation.    In December 1996, during the

separation, the wife, the daughter and Redford had DNA tests to

determine paternity.    The analysis indicated a probability of

99.81% that Redford was the daughter's natural father.      The wife

testified that she began suspecting the daughter was not the

husband's child when the daughter was about five years old and

the daughter began to resemble Redford.    Redford testified that

for several years he also had suspicions that he was the

daughter's father because his relatives told him the daughter

resembled him.    In February 1997, Redford and the wife filed

petitions seeking custody of the daughter.    A judge of the

juvenile and domestic relations district court ordered custody of

the children to remain with the husband.
        In the circuit court, the trial judge considered in one

proceeding evidence concerning the divorce between the husband

and the wife and the de novo appeals of the wife and Redford from

the custody order of the juvenile court.    At the conclusion of

the ore tenus hearing, the trial judge entered a decree of

divorce upon the wife's petition for a non-fault divorce.      In a



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later separate order, the trial judge awarded custody of the son

to the husband and awarded custody of the daughter to the wife

and Redford.

                               II.

     On this appeal, the husband raises the following issues:
          1. Whether the trial judge erred in refusing
          to allow the children to testify at the
          hearing;

          2. Whether the trial judge erred in failing
          to make separate rulings as to law and fact
          with respect to the wife's and Redford's
          petitions for custody of the daughter because
          different legal tests were required to be
          applied to each petition;
          3. Whether the trial judge erred in
          determining that Redford should be awarded
          custody of the daughter; and

          4. Whether the trial judge erred in
          determining that the wife should be awarded
          custody of the daughter.


     The wife and Redford contend that they should be awarded

costs and attorneys' fees incurred in this appeal because the

appeal is frivolous.

                               A.

     At trial, the husband's counsel said to the judge, "We are

going to ask you speak with the children."   In support of that

request, the husband's counsel argued that "particularly in the

case where you are going to allow statements that the children

have made to not only parties, but third parties to come into

evidence, I think it should come in. . . . I hesitate to call the

children to the stand, but I believe the children will tell you a



                              - 3 -
lot of what [the wife] just said isn't true."     The trial judge

responded "that it would probably not serve any additional

purpose in terms of the Court's decision making process to speak

with the children. . . . So the Court is going to rule that it

will not interview the children."    When the judge declined to

speak with the children in his chambers, the husband's counsel

did not call the children as witnesses to testify.

     The trial judge's decision whether to interview children in

the judge's chambers will not be reversed unless the trial judge

abused his discretion.    See M.E.D. v. J.P.M., 3 Va. App. 391,

404, 350 S.E.2d 215, 224 (1986).    Beyond counsel's assertion, the

record does not disclose any necessity for the judge to have

spoken to the children in his chambers.     Thus, the record fails

to establish that the judge's decision was an abuse of

discretion.

     Furthermore, no effort was made to present the children as

witnesses.    See Lawson v. Lawson, 198 Va. 403, 409, 94 S.E.2d

215, 220 (1956).   In a similar situation, we have ruled that

"[i]n the absence of any action to call the child[ren] as . . .

witness[es], . . . the court did not err in declining to 'meet

with' [them] in chambers."    M.E.D., 3 Va. App. at 404, 350 S.E.2d

at 224.   Here, as in that case, the husband "took no affirmative

step to tender the child[ren] as . . . witness[es] and, in fact,

expressly eschewed any such step."      Accordingly, the record does

not support the husband's claim of error.




                                - 4 -
                                B.

     Alleging that the wife lost custody because of "a prior

divestiture," the husband argues that the trial judge erred in

giving the wife "the presumption as a natural parent."   We

disagree with this assertion because no evidence proved that an

order had been entered divesting the wife of parental rights.

The evidence proved that in an earlier proceeding between the

husband and the wife, a court gave custody of the children to the

husband and granted the wife visitation.   Thus, when the wife

petitioned for a change in custody in this proceeding, the trial

judge was required to determine "first, has there been a change

in circumstances since the most recent custody award; [and]

second, would a change in custody be in the best interests of the

children."   Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921

(1983).   The record establishes that the trial judge applied the

correct rule of law when determining the wife's petition.

                                C.

     Asserting that "[t]he correct legal test as to whether

[Redford] should have been granted custody of [the daughter] was

enunciated in Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824
(1986)," the husband argues that the trial judge failed to apply

that test.   Although we agree that the trial judge did not

explicitly cite Bailes in his ruling, we conclude that the trial

judge committed no reversible error.

     In his ruling from the bench following the ore tenus



                               - 5 -
hearing, the trial judge made the following statements pertinent

to the issues:
             The Court does have two separate cases.
          We have two children. Usually when the Court
          has two children and determines custody,
          usually the issues are by and large the same
          and more often than not the Court can just
          look at it as being a single case. I'm not
          able to do that here for the reasons I've
          given in terms of the different relationships
          that the children have. The revelation that
          . . . Redford is indeed the father of [the
          daughter] is an extremely important fact in
          many ways. I will address that later. I
          want first of all to let you know my decision
          with reference to [the son] . . . . Then I
          will address my decision relating to [the
          daughter].
               *     *     *     *     *     *     *

             Now, the Court is going to address the
          custody issue relating to [the daughter].
          This is not an easy decision to make, not
          that the decision with [the son] was an easy
          decision to make, but we have complexities
          here that create the difficulties this Court
          is facing; that is . . . Redford's paternity,
          the fact the Court has now established that
          . . . Redford is the father of [the
          daughter].

             The cases are very clear in terms of the
          right of a natural parent. . . . [A]s between
          a natural parent and nonparent the law
          presumes the best interests of the child will
          be served when the child is within the
          custody of the natural parents. Then there
          is the additional established rule the parent
          prevails unless the nonparent bears the
          burden of proving by clear and convincing
          evidence both that the parent is unfit and
          that the best interests of the child will be
          promoted by granting custody to the
          nonparent. Either parent with a suitable
          home has the right to custody of his child
          superior to the rights of others.

               *     *     *     *     *     *     *



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              We now have in this proceeding not only
           the natural mother who was a party to that
           prior proceeding, but . . . Redford. The
           Court finds that there has been a significant
           change in circumstances, very significant
           change in circumstances. And the main change
           is that we have before the Court another
           father, . . . Redford. Not only do we have
           another father before the Court, but we have
           another sister, a sibling, a half sister
           . . . who has testified. We have evidence of
           how . . . Redford has provided for that
           child, which is an honor student and
           apparently has developed quite well.

                *    *    *    *    *    *     *
              The Court, even if it applies the standard
           of what is in the best interests of the child
           and in doing that considering the fact that
           [the husband] has been a good father to this
           child -- he hasn't been perfect. There have
           been some shortcomings. The Court
           nevertheless feels that even if it applies
           what is in the best interests of the child
           standard notwithstanding the presumption that
           might have applied to a natural parent as
           opposed to nonparent, finds it is in the best
           interests of [the daughter] that she be
           placed in the custody of her natural mother
           and her natural father. So that will be the
           decision of the Court as to that child.


     We quote extensively from the trial judge's ruling from the

bench because those statements clearly reflect that the trial

judge was aware of the factual and legal issues to be decided and

was aware of the legal standard of proof.    The trial judge's

order also reflects those understandings because he ruled as

follows:
           [T]he Court finds that there has been a very
           significant change in circumstances since the
           last custody order, that . . . Redford has
           been - found to be the father of [the
           daughter]; that the natural father and mother



                               - 7 -
          are together - providing a home for the child
          and for the first time giving the child an
          opportunity to be in the home of the natural
          parents; that they are in a new home with
          adequate room for the child; that by living
          with them, [the daughter] will remain in the
          general community where she has grown up and
          will remain near the paternal grandmother's
          home; that [the daughter] enjoys a closer
          relationship with her mother than does [the
          son]; that . . . [the daughter] has a strong
          relationship with her father, . . . Redford,
          and that without giving the parties a
          presumption of custody as natural parents,
          the best interests of [the daughter] will be
          served by awarding custody of [the daughter]
          to [the wife] and . . . Redford.

     The husband argues in his brief that in this "custody

dispute between a parent [, Redford,] and a non-parent [, the

husband,] 'the law presumes that the child's best interests will

be served when in the custody of its parent.'    Judd v. Van Horn,

195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)."   Thus, he contends

the trial judge's ruling reflects an error because the trial

judge did not apply this test to Redford's petition.

     The trial judge's ruling clearly reflects that even if the

trial judge erred, he erred in favor of the husband by applying a

test more favorable to the husband.    To rebut the presumption

favoring a parent over a non-parent, the evidence must clearly

and convincingly prove "(1) parental unfitness; (2) a previous

order of divestiture; (3) voluntary relinquishment; . . . (4)

abandonment[;]" and (5) "'special facts and circumstances . . .

constituting an extraordinary reason for taking a child from its

parent, or parents.'"   Bailes, 231 Va. at 100, 340 S.E.2d at 827




                               - 8 -
(citations omitted).   Although the husband's evidence may not

have been expressly considered by the judge as evidence rebutting

the presumption favoring a natural parent, the trial judge's

ruling reflects that the evidence was considered in the trial

judge's determination of the best interests of the daughter.

       By stating that he was not going to give Redford "a

presumption of custody as [a] natural [parent]," the trial judge

eliminated the husband's burden of overcoming this presumption by

clear and convincing evidence.    Instead, the trial judge

considered the best interests of the child, a more stringent test

for Redford to meet.   Thus, even if the trial judge erred, the

trial judge erred in favor of the husband by eliminating his

burden of overcoming the natural parent presumption and applying

a test more favorable to the husband.    We find no reversible

error.
                                  D.

       The husband further argues that the evidence did not support

the trial judge's decision.   In deciding this issue, we apply the

well established standard that "[w]hen the [trial judge] hears

the evidence ore tenus, [the judge's] findings are entitled to

the weight accorded a jury verdict, and they will not be

disturbed on appeal unless they are plainly wrong or without

evidence to support them."    Bailes, 231 Va. at 100, 340 S.E.2d at

827.

       Based upon evidence in the record, the trial judge found



                                 - 9 -
that Redford was the child's natural parent.       The evidence proved

that after Redford received the DNA results, Redford promptly

filed for custody.    The record contains evidence from which the

trial judge could have found that Redford, who the trial judge

found had been a good parent to his other child, was a fit

parent; that Redford had asserted his custody interest without

delay after Redford learned of the DNA results; that the

"relationships in this family are just extremely confusing and

complex"; and that special facts and circumstances establish that

"it is in the best interests of [the daughter] that she be placed

in the custody of her natural mother and her natural father."
        On our review of the evidence, we cannot say that the trial

judge's findings are plainly wrong or without evidence to support

them.

                                  E.

        We do not find, as suggested by the wife and Redford, that

this appeal was so lacking in merit that attorneys' fees should

be awarded.    Accordingly, we make no award of attorneys' fees for

this appeal.

        For these reasons, we affirm the decree.

                                                   Affirmed




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