                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia


THOMAS BOYCE, ET AL.

v.   Record No. 2044-96-3

BRIAN SAMUEL BUSH                       MEMORANDUM OPINION * BY
                                     JUDGE JOHANNA L. FITZPATRICK
CYNTHIA BOYCE BUSH                          APRIL 29, 1997

v.   Record No. 2045-96-3
BRIAN SAMUEL BUSH

              FROM THE CIRCUIT COURT OF LEE COUNTY
                     William C. Fugate, Judge

          Charles L. Bledsoe (Bledsoe & McAfee, P.C.,
          on briefs), for appellants.

          Terry G. Kilgore (Kilgore & Baker, on brief),
          for appellee.



     This is a child custody dispute between the child's natural

mother and grandparents and the child's former stepfather.   The

sole issue presented is whether the trial court erred in finding

that the child's best interests would best be served by awarding

temporary custody to her former stepfather.    Finding no error, we

affirm.

     "On review, '[a] trial court is presumed to have thoroughly

weighed all the evidence, considered the statutory requirements,

and made its determination based on the child's best interests.'"
 Logan v. Fairfax County, 13 Va. App. 123, 128, 409 S.E.2d 460,

     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
463 (1991) (quoting Farley v. Farley, 9 Va. App. 326, 329, 387

S.E.2d 794, 795 (1990)).   "[T]he evidence is viewed in the light

most favorable to the prevailing party below and its evidence is

afforded all reasonable inferences fairly deducible therefrom."

Id.   In matters concerning the welfare of a child, "trial courts

are vested with broad discretion in making the decisions

necessary to guard and to foster a child's best interests."

Farley, 9 Va. App. at 328, 387 S.E.2d at 795.     When based on

evidence heard ore tenus, the trial court's judgment will not be
disturbed on appeal unless plainly wrong or without evidence to

support it.   Id. at 328, 387 S.E.2d at 795-96.

      Cynthia Boyce Bush (mother) and Brian Samuel Bush

(step-father) were married on September 16, 1994.    At the time of

the marriage, mother was sixteen and stepfather was twenty-three.

Prior to the marriage, mother gave birth to Demi Shontey Boyce

(Shontey) whose natural father's identity was unknown.    Mother

left the marital residence in February 1995, and took the child

with her.   The evidence established that she left Shontey with

her father, Thomas Boyce (Thomas), and stepmother, Esther Boyce

(Esther), and moved in with a friend.   For a period of

approximately three to four months, from mid-April through July

1995, while Shontey was in the care of Thomas, mother visited the

child only four times for a total of ten to fifteen minutes.

Mother voluntarily relinquished custody of Shontey to Thomas in




                                 2
July 1995, and left the area. 1

        Following the parties' separation, on June 21, 1995 step-

father petitioned for custody of Shontey.    The Department of

Social Services (DSS) conducted a court ordered home study that

indicated that stepfather "appears to be a very levelheaded and

responsible young man" who is "able and capable of providing care

for his stepdaughter . . . ."     Also, in June 1995, DSS conducted

a home study of Thomas and Esther's home and concluded that

"Esther and Thomas Boyce are capable of providing appropriate

care and an environment for the child."
     In August 1995, DSS attempted to do a home study of mother.

 The social worker was unable to complete the study because she

was unable to locate mother, who had moved to North Carolina in

July 1995.    The social worker stated that "[t]his agency also

feels that Ms. Bush's life style displays her inability to care

and provide for the subject child."    The social worker concluded

that,
             [b]ased on the information provided by Ms.
             Bush, it is this worker's impression that she
             is not capable of providing the adequate care
             and supervision that the subject child will
             need and require at this time. It also
             appears that Ms. Bush has several areas of
             her own life that she needs to address and
             improve before she can even attempt to
             effectively parent the subject child.


        In August 1995, mother was diagnosed with cancer, and

underwent an emergency hysterectomy.    She did not return to

        1
      Mother also petitioned the juvenile and domestic relations
district court to place Shontey in Thomas' custody. The court
granted this request, and awarded temporary custody to Thomas and
visitation to stepfather.

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Thomas' home until March or April 1996.   The parties were

divorced by order dated nunc pro tunc May 8, 1996.

     The trial court conducted an ore tenus hearing on July 11,

1996, and awarded custody of Shontey to stepfather.    No

transcript of that hearing is provided.   However, the parties

agree that the court's order and the attached home studies supply

sufficient evidence for review.   The court made the following

relevant findings in an order dated August 6, 1996:
               That both parties, Cynthia Boyce Bush,
          the natural mother, and Brian Samuel Bush,
          the stepfather, are fit and proper parents,
          capable of caring for the minor child, Demi
          Shontey Boyce.
                 *    *    *      *   *    *    *

               That a homestudy on Brian Samuel Bush
           . . . was performed at the request of the
          Court and determined to be a suitable
          environment for the child.

                 *    *    *      *   *    *    *

               That as a result of her illness, there
          are times when Cynthia Boyce Bush needs
          assistance with the care of her infant child
          . . . , and it is provided by her father and
          stepmother . . . .

               That a homestudy on the Thomas and
          Esther Boyce household, the maternal
          grandfather and stepgrandmother of Demi
          Shontey Boyce was performed at the request of
          the Court and determined to be a suitable
          environment for the child.

                 *    *    *      *   *    *    *

               The Court, after consideration of the
          factors contained in Virginia Code Section
          20-124.3 as it relates to the best interest
          of the child, finds that the best interests
          of the child, by clear and convincing


                                  4
             evidence would be served by granting
             temporary custody of the child, in accordance
             with [the court's findings], Demi Shontey
             Boyce to Brian Bush, the former stepparent
             . . . .


    "In a custody dispute between a parent and a non-parent,

'the law presumes that the child's best interests will be served

when in the custody of its parent.'"     Bottoms v. Bottoms, 249 Va.

410, 413, 457 S.E.2d 102, 104 (1995) (quoting Judd v. Van Horn,

195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)).    "In all child

custody cases, including those between a parent and a non-parent,

'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)).

     In order to overcome the presumption favoring a parent, "the

nonparent must adduce 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 parents."     Mason v. Moon, 9 Va. App. 217, 220,

385 S.E.2d 242, 244 (1989).    "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




                                   5
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 (1991).

     "Abandonment of a child without justification establishes

parental unfitness.    When abandonment exists in a custody dispute

between a parent and another, the general rule becomes operative

and the child's welfare is the dominant and controlling factor."

 Patrick v. Byerly, 228 Va. 691, 694-95, 325 S.E.2d 99, 101

(1985).   "A voluntary relinquishment [of custody] occurs when a

parent willingly agrees or consents to having their child placed

in the custody of a nonparent."        Mason, 9 Va. App. at 222, 385

S.E.2d at 245.

     Because the stepfather prevailed at trial, we must view the

evidence and all the reasonable inferences flowing therefrom in

the light most favorable to him.       In so doing, the evidence

established that the mother voluntarily relinquished custody of

Shontey to a third party, her father.       This action rebutted the

statutory presumption of parental preference, and the general

rule that the child's welfare controls becomes operative.

Sufficient evidence supports the trial court's finding that

"after consideration of the factors in Virginia Code Section 20-

124.3 as it relates to the best interests of the child, . . . the

best interests of the child, by clear and convincing evidence

would be served by granting temporary custody . . . to the former

stepparent."    We conclude that the evidence supports this



                                   6
finding.

               Affirmed.




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