                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued by teleconference


ANDREW HURREN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2167-98-3                 JUDGE SAM W. COLEMAN III
                                                JUNE 8, 1999
JESSIE O. EPPERSON


              FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                        H. Selwyn Smith, Judge

            James L. Scruggs (Virginia Legal Aid
            Society, Inc., on briefs), for appellant.

            Elizabeth P. Doucette for appellee.



     This appeal involves a custody dispute between a child’s

father, Andrew Hurren, and the child’s maternal aunt, Jessie

Epperson.   The circuit court granted sole custody of the child to

Epperson with supervised visitation to Andrew Hurren.     On appeal,

Hurren contends that the trial court misapplied the law and

asserts that the evidence was insufficient to support the custody

and visitation order.    We find that the trial court applied an

incorrect legal standard in determining a custody dispute between

a parent and non-parent.    Accordingly, we reverse the custody

award, and remand for further consideration.      Consequently, we do


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
not address whether the evidence is sufficient to support a

custody award to Epperson, as a non-parent.

                              BACKGROUND

     Andrew Hurren and his wife Carolyn separated in May of 1997

after nineteen years of marriage.   The Hurrens had two children

one of whom, DJ, was four years old at the time of the separation

and is the subject of this custody dispute.

     At the time of the parents’ separation, they both left their

two children with the maternal grandparents where the Hurrens and

their children had resided.   During the marriage, Andrew Hurren

had been very sporadically employed, being unemployed for the two

and one-half years after DJ was born.      The Department of

Corrections relieved him from his most recent job as a guard after

he was charged with assault and battery of his wife. 1    Due to

Andrew Hurren’s sporadic income, his child support payments were

reduced to $30 per month.   The parties agreed to a joint custody

order with Carolyn having physical custody.     Carolyn Hurren

eventually ceased involvement with her children.     During the

months following the separation, Andrew Hurren had little contact

with DJ.   Also following their separation, Andrew Hurren had

checked himself into a hospital for emotional problems; the

medical records show he suffered from suicidal ideation and


     1
      According to Andrew Hurren, he was reinstated after the
charges were dropped but subsequently quit the job due to the
pressures of his failing marriage.


                                - 2 -
frustration over his failing marriage and pressures of his job.

At the time, he was living at the National Guard armory.     Later,

and at the time of the custody hearing, Hurren was living with and

at the home of his girlfriend.    Carolyn Hurren did not assume

physical custody of DJ but instead left her with the maternal

grandmother.

     Due to the grandmother’s failing health, Jessie Epperson,

Carolyn Hurren’s sister, increasingly had assumed the

responsibility of caring for DJ.    Epperson eventually brought both

Hurren children into her home and filed a petition for their

custody.    Andrew Hurren also petitioned for sole custody, having

previously agreed to joint custody.      Due to bruises on DJ’s legs,

Andrew Hurren and Epperson each made counter charges of abuse

against DJ by the other.   During the pendency of the hearing, the

parties agreed to temporarily transfer custody to the maternal

grandmother without contact by either Epperson or Andrew Hurren.

     As to Epperson’s ability to care for DJ, the evidence proved

that Epperson left her job in February of 1998 due to back

problems.   At the time of the June 25 custody hearing, she was

unemployed and had filed for bankruptcy.     While the maternal

grandmother had temporary custody of DJ, Epperson had failed to

forward child support payments to the grandmother from Andrew

Hurren.    Epperson testified that she did not take the money to the

grandmother to prevent violating the no contact court order.



                                 - 3 -
     The circuit court granted Epperson custody of DJ and granted

Andrew Hurren supervised visitation.      Andrew Hurren appeals that

order.

                               ANALYSIS

     “Absent clear evidence to the contrary in the record, the

judgment of a trial court comes to us on appeal with a

presumption that the law was correctly applied to the facts.”

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286,

291 (1977) (cited in Bottoms v. Bottoms, 249 Va. 410, 414, 457

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

     In child custody matters, the best interests of the child

are paramount.     See Bailes v. Sours, 231 Va. 96, 99, 340 S.E.2d

824, 826 (1986).    However, in custody disputes between a parent

and a non-parent, the law presumes that awarding custody to the

parent serves the best interests of the child.       See Bottoms, 249

Va. at 413, 457 S.E.2d at 104; Rocka v. Roanoke County Dept. of

Welfare, 215 Va. 515, 518, 211 S.E.2d 76, 78 (1975); Elder v.

Evans, 16 Va. App. 60, 65, 427 S.E.2d 745, 747 (1993).       The

presumption in favor of the parents is “strong” and “may not be

lightly severed but [is] to be respected if at all consonant

with the interest of the child.”     Mason v. Moon, 9 Va. App. 217,

220, 385 S.E.2d 242, 244 (1989); see Bottoms, 249 Va. at 413,

457 S.E.2d at 104.

     A party may rebut the presumption in favor of the parent by

establishing by clear and convincing evidence various

                                 - 4 -
circumstances including parental unfitness.     See Bailes, 231 Va.

at 100, 340 S.E.2d at 827.   If the non-parent rebuts the

presumption favoring parental custody, the parent then bears the

burden of showing that the child’s best interest will be served,

nevertheless, by the child’s custody being awarded to the

parent.   See Mason, 9 Va. App. at 220-21, 385 S.E.2d at 244. 2

     At trial, the trial judge twice stated the standard he

applied in deciding the custody dispute of DJ.    Both times, the

judge rejected Andrew Hurren’s assertion that the law creates a

presumption in favor of a parent over a non-parent having

custody of a child.   Instead, he asserted that the law

establishes an “inference that the . . . parents come first

. . . insofar as . . . custody is concerned.”    The trial court

applied a much less stringent standard than the Supreme Court

and this Court have articulated in order for a non-parent to

prevail over a parent in a child custody dispute.    Accordingly,

we find that the trial court erred by applying the less




     2
      As appellant notes, however, a finding that the parent is
unfit is not sufficient to support an award of custody to the
non-parent. The trial court must also determine that it would
be in the best interest of the child to be in the custody of the
non-parent. This follows from the unfortunate fact that the
custody-seeking non-parent could be less fit for parenting than
the unfit parent. See Rocka, 215 Va. at 518, 211 S.E.2d at 78
(stating that the parent prevails unless the non-parent proves
both that the parent is unfit and that “the best interests of
the child will be promoted by granting custody to the
non-parent”).


                               - 5 -
stringent “inference” favoring a parent in deciding the custody

dispute.

     Unless the evidence is such that, as a matter of law the

trial judge would have reached the same conclusion had he

applied the proper standard and higher burden of proof, we must

remand the case for the trial court to reconsider the evidence

under the proper standard.   The record reveals numerous negative

circumstances that weigh against awarding custody of DJ to

Andrew Hurren and that favor restricting his visitation rights.

Witnesses characterized Andrew Hurren’s prior relationship with

his children as violent, abusive, and distant.   Uncontradicted

evidence suggested that Andrew Hurren molested his older

daughter.   The evidence also showed that in the recent past

Andrew Hurren demonstrated little interest in the well-being of

his children.   As to his ability and suitability to care for DJ,

Andrew Hurren was living with a woman to whom he was not married

at a residence in which he had no legal property interest. 3

Also, Andrew Hurren had more than once threatened suicide, and a

psychiatric hospital recently had admitted him for suffering

from suicidal ideation.   His work history suggested that he had




     3
      Although Andrew Hurren questioned the propriety of the
trial court’s consideration of his living arrangement, the
effect a non-marital relationship has on a child is an
appropriate consideration in a child custody dispute. See Brown
v. Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1997).


                               - 6 -
trouble staying employed and was unable to earn sufficient

income to support his children.

     Nevertheless, the record also reveals circumstances that

weighed against awarding custody of DJ to Epperson.   Epperson

failed to forward the child support checks to DJ’s grandmother

when the grandmother had temporary custody of DJ.   Additionally,

Epperson was unemployed and in bankruptcy.   The trial judge had

observed that in many respects the two homes offered equivalent

living conditions for the child.

     We cannot say that had the trial judge applied the proper

standard and determined that it was in the child’s best interest

to grant custody of DJ to Andrew Hurren, that the decision would

be reversible error.   In other words, the weight of the evidence

is not such that this Court can apply the correct standard and

determine, as a matter of law, the trial court reached the right

result.   Accordingly, we reverse the trial court’s order, and

remand the case for review of the evidence under the proper

standard.

                                             Reversed and remanded.




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