                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


KIMBERLY ANNE WEIG
                                        MEMORANDUM OPINION * BY
v.   Record No. 0756-96-2             CHIEF JUDGE NORMAN K. MOON
                                           FEBRUARY 4, 1997
LAWRENCE GEORGE WEIG, JR.


          FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                     J. Peyton Farmer, Judge
          Owaiian M. Jones (Law Offices of Owaiian M.
          Jones, on brief), for appellant.

          No brief or argument for appellee.



     Appellant, Kimberly Anne Weig, appeals the March 4, 1996

custody order of the circuit court.    Appellant contends: (1) the

evidence failed to establish by clear and convincing evidence

that she voluntarily relinquished custodial rights to her son;

(2) no extraordinary circumstances existed which would overcome

the presumption favoring the biological parent; (3) the evidence

failed to establish that appellee, the nonparent, provided all

day-to-day care and exhibited excellent parenting skills; (4) the

evidence failed to establish that appellee had obtained custody

because the temporary custody order was without prejudice; and

(5) the evidence failed to establish that it would be in the

child's best interests for appellee to have custody.    We find

that the trial court properly found that special facts and

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
circumstances existed which warranted granting custody to

appellee.    Accordingly, we affirm the trial court's award of

custody to appellee.

        Appellant and appellee were married on February 15, 1984, in

Maryland.    On October 2, 1990, appellant gave birth to her son,

Ryan.    The circuit court ruled in its May 12, 1995 divorce decree

that Ryan was not a child of the marriage.    While appellee is

listed on Ryan's birth certificate as his father, the parties

have stipulated that Ryan is not the appellee's biological child.
        After Ryan's birth, the parties resided together as a family

until February, 1994.    At that time, because of continuing

differences between the parties, appellant left the marital

residence and moved from Spotsylvania County to Williamsburg,

Virginia.    The parties entered into a marital settlement

agreement dated February 3, 1994.    Appellant also decided that

because of her financial situation and her desire to go to school

full time, it would be in Ryan's best interest to leave him in

appellee's custody.    On March 30, 1994, appellee filed a pro se

petition for divorce in the Circuit Court of Spotsylvania County.

On May 12, 1995, the circuit court entered its decree of divorce

a vinculo matrimonii, in which the court retained jurisdiction

over the matters of custody and child support.

        During the hearing, appellant acknowledged that since her

departure from the marital residence in February, 1994, appellee

provided for all of Ryan's physical and emotional needs.

Appellant further acknowledged that appellee has actively

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facilitated appellant's visitation with Ryan and that "[a]ppellee

spends a vast amount of time and energy on Ryan."   At trial,

testimony was presented indicating that "Ryan appeared to be

[a]ppellee's number one concern, and that Ryan appeared to be a

major factor in all of [a]ppellee's decisions."   Evidence was

also received that "[a]ppellee did an excellent job of taking

care of Ryan, has excellent parenting skills, and was appropriate

in his behavior with Ryan."   Appellant testified that appellee

had, however, exhibited violent tendencies in the past and that

appellee was "too controlling" of appellant's visits with Ryan.

Appellant did, however, recognize that these "violent tendencies"

had been displayed prior to her leaving Ryan in appellee's

custody.    No evidence was presented suggesting that appellee ever

physically abused Ryan.
     Appellee argued that appellant should not have custody of

Ryan because her financial and home situations were not stable

and because appellant spends time with people who abuse drugs and

alcohol.    Appellee further argued that appellant should not have

custody because Ryan has been having emotional difficulties

dealing with the parties' separation, which necessitated his

enrollment in a special preschool and visitation with a

counselor.   Appellee asserts that removal of Ryan from these

programs will be detrimental and that appellant has no plans for

ensuring that Ryan continues to have access to counseling

services.

     In its letter opinion of October 31, 1995, the circuit court

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awarded custody to appellee, finding that the evidence

established that appellant made a voluntary relinquishment and

further that appellee proved by clear and convincing evidence

that extraordinary circumstances existed which overcame the

presumption favoring the biological mother.    Appellant requested

a rehearing, which was held on March 4, 1996.    At that time, the

court affirmed its opinion letter, entering a child custody and

support order awarding appellee custody.
     "In all child custody cases, including those between a

parent and nonparent, `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)).    Where a natural parent and

nonparent engage in a custody dispute, the presumption is that

"the best interest of the child will be served when in the

custody of the natural parent."     Mason v. Moon, 9 Va. App. 217,

220, 385 S.E.2d 242, 244 (1989).    Accordingly, "the rights of the

[natural] parents may not be lightly severed but are to be

respected if at all consonant with the best interest of the

child."   Wilkerson v. Wilkerson, 214 Va. 395, 397, 200 S.E.2d

581, 583 (1973).   To overcome the presumption favoring a natural

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)

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special facts and circumstances constitute extraordinary reasons

to take the child from the parents."     Mason, 9 Va. App. at 220,

385 S.E.2d at 244 (citing Bailes, 231 Va. at 100, 340 S.E.2d at

827).

        Here, the circuit court specifically considered the five

factors delineated in Bailes, and found that the "evidence

establishes that [appellant] made a voluntary relinquishment and

. . . that [appellee] has proved by clear and convincing evidence

that there are extraordinary circumstances which overcome the

presumption favoring the mother."    We need not reach the issue of

whether voluntary relinquishment occurred because we find the

evidence sufficient to sustain the trial court's finding of

special facts and circumstances.
        In determining whether sufficient evidence has been

presented to rebut the presumption in favor of the natural parent

having custody, the trial court must consider all the evidence

before it.     Id. at 220, 385 S.E.2d at 244.   Further, on appeal,

the trial court's findings are entitled to great weight and will

not be disturbed unless plainly wrong or unsupported by the

evidence.     Bailes, 231 Va. at 100, 340 S.E.2d at 827.   Here, the

trial court indicated those special facts and circumstances it

considered, finding that:
          The child has resided with [appellee] since
          February, 1994. Ryan has some emotional
          problems and [appellee] has arranged for
          counseling. [Appellee] has provided all of
          the day-to-day care for Ryan since he
          obtained custody and has exhibited excellent
          parenting skills. He has made personal
          sacrifices in trying to do what was best for

                                 - 5 -
          the child.


In addition, the record indicates that during the more than two

year period in which Ryan resided with appellee, appellant

averaged visiting her son only twice a month and provided little

if any emotional and financial support for her child.

     Evidence of Ryan's emotional problems, which are being

addressed by appellee, combined with evidence of Ryan's complete

dependence on appellee and appellant's lack of involvement with,

or support of, Ryan for a period of more than two years is

sufficient to sustain the trial court's finding of special facts

and circumstances.
     Once the trial court found that special facts and

circumstances existed which warranted awarding custody to

appellee, the burden shifted to appellant to prove that it would

nevertheless be in the best interests of the child for her to

have custody.   Smith v. Pond, 5 Va. App. 161, 163, 360 S.E.2d

885, 886 (1987).   Appellant offered no such proof in this case.

To the contrary, appellant acknowledged appellee's love for her

son, his excellent parenting skills, and the time and energy

appellee has spent in caring for Ryan.   The evidence is

sufficient to sustain the trial court's finding that Ryan's best

interests are served by awarding continued custody to appellee.

     Accordingly, we affirm the trial court's decision.

                                                   Affirmed.




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