                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia


PENNY CARTER
                                         MEMORANDUM OPINION * BY
v.           Record No. 3078-97-4        JUDGE RICHARD S. BRAY
                                           OCTOBER 13, 1998
JOAN BROWN


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                    William D. Hamblen, Judge
             Javier M. Guzman (Colleen R. Olszowy; Sharon
             Fast Gustafson; Crowell & Moring LLP, on
             briefs), for appellant.

             Anne Tyler Godson for appellee.



     Acting on petition of Penny Carter (mother) praying for

custody of her infant daughter (child), the trial court ruled

that mother failed to prove the requisite change in circumstances

since an earlier award of custody to Joan Brown, child's paternal

grandmother (grandmother), and ordered that custody remain with

grandmother.    Mother appeals, complaining that the court

erroneously declined to favor mother with the "parental

presumption" and acted contrary to child's best interests.

Finding no reversible error, we affirm the disputed order.

     The parties are conversant with the record, and this

memorandum opinion recites only those facts necessary to

disposition of the appeal.    In accordance with well established

principles, we must "review the evidence in the light most
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
favorable to the prevailing party below," grandmother in this

instance.      Hughes v. Gentry, 18 Va. App. 318, 322, 443 S.E.2d

448, 451 (1994).

     The relevant procedural history is uncontroverted.      On

petition of the Fairfax County Department of Human Development,

the Fairfax County "Family Court" (J&D court) found that child

was "abused and neglected" and, by order dated February 24, 1992,

awarded grandmother "legal custody."      In August 1992, mother

petitioned the J&D court to restore custody to her, alleging a

change in circumstances since the February order.      In the related

decree, entered March 30, 1994, the J&D court found that mother

had established a change of circumstances, expressly noting that

she had remained "drug-free," remarried, given birth to another

child, and regularly exercised visitation with the subject child.

 Nevertheless, the court concluded that child had developed "a

stable life and . . . bond with her paternal grandmother" and

that it was not in child's best interests to transfer custody to
          1
mother.       Mother failed to prosecute an appeal of this order, and

it became a final adjudication of her petition. 2

     1
      Mother's petition expressly asserted the "preference of
custody in the parent[s]" but the court implicitly refused to
apply the parental presumption, ruling that the "burden of
proof . . . is upon mother to show . . . that the circumstances
have so changed that it would be in the best interests of the
child to transfer custody to her."
     2
      Mother's complaint that this procedural default resulted
from ineffective counsel was not properly presented before the
trial court and will not be considered on appeal. Rule 5A:18.



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     In April of 1995, mother initiated the instant proceeding by

petition in the Juvenile and Domestic Relations District Court of

Prince William County, again seeking custody and arguing that a

change in circumstances, together with child's best interests,

necessitated a transfer.   By order entered May 2, 1997, the

Prince William County J&D court dismissed the petition, finding

"no material change of circumstances which would justify the

modification of the [March 30, 1994] order."
     Mother appealed to the trial court and, following a lengthy

hearing, the court determined, by order entered November 24,

1997, that mother had "not satisfied either the matter of proving

that there had been a substantial change of circumstances since

the Custody Order on March 30, 1994 . . . or that transfer of

custody from the paternal grandmother to the natural mother would

be in the best interests of the child."   On appeal to this Court,

mother contends that the trial court erroneously failed to apply

the presumption that parental custody best serves the interests

of children and ruled contrary to child's best interests.

                     CHANGE OF CIRCUMSTANCES

     It is well established that a trial court "may, from time to

time . . ., on petition of either of the parents, . . . revise [a

prior] decree concerning the care, custody and maintenance of the

children and make a new decree concerning same, as the

circumstances . . . may require."   Code § 20-108.   "In such

cases, before evaluating whether to modify a decree, the court




                               - 3 -
must initially find that a 'material change in circumstance[s]'"

has occurred following a prior custody award.       Bostick v.

Bostick-Bennett, 23 Va. App. 527, 535, 478 S.E.2d 319, 323 (1996)

(citations omitted).   Absent a material change, the principle of

res judicata precludes reconsideration and revision of the

earlier decree.    See id.    "[O]nce [this] threshold finding is

made, the court must evaluate whether a change in custody would

be in the best interests of the child."       Id.; see Hughes, 18 Va.

App. at 321, 443 S.E.2d at 450.
     Ordinarily, the movant must establish both that the

circumstances have changed and that the best interests of the

child require a transfer of custody.       See Hughes, 18 Va. App. at

321, 443 S.E.2d at 450.      However, "[i]n custody disputes between

a natural parent and a nonparent, the law presumes 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) (citation omitted).       "This presumption is

rebuttable, . . . if the non-parent adduces clear and convincing

evidence that . . . a court previously has granted an order of

divestiture . . . ."    Smith v. Pond, 5 Va. App. 161, 163, 360

S.E.2d 885, 886 (1987) (citing Bailes v. Sours, 231 Va. 96, 100,

340 S.E.2d 824, 827 (1986)).     Once rebutted, the natural parents

"must bear the burden of proving that custody with them is in the

child's best interests."      Id.; see McEntire v. Redfearn, 217 Va.

313, 315, 227 S.E.2d 741, 743 (1976).



                                  - 4 -
     Similarly, a parent confronting a divestiture of custody

must establish "that circumstances had so changed that it [is] in

the child[]'s best interests to transfer custody to [the

parent]."   McEntire, 217 Va. at 316, 227 S.E.2d at 743 (citations

omitted).   "This rule advances the obvious benefits of providing

stability in the life of the child whose custody is the subject

of the conflict . . . ."    Hughes, 18 Va. App. at 322, 443 S.E.2d

at 451.   On appeal, a trial court's resolution of the issue of

changed circumstances is presumed correct and will be disturbed

only if plainly wrong or without support in the record.     See id.

     Here, assuming, without deciding, that the Fairfax J&D court

only conditionally divested mother of custody in its 1992 order,

the 1994 order determined the issue of custody on the merits of

circumstances then prevailing.    The 1994 order provided that

custody of child be vested in grandmother, clearly displacing

mother's parental right of preference.    See McEntire, 217 Va. at

315, 227 S.E.2d at 743.    Consequently, upon institution of the

present proceeding, mother "was not clothed with the parental

presumption generally accorded natural parents in a dispute with

non-parents," and the burden was upon her to prove that the

circumstances had changed since the 1994 order.    Id. at 316, 227

S.E.2d at 743.

     Our review of the record discloses mother's commitment to a

constructive lifestyle, free of drugs and consistent with

responsible parenting.    Successful employment, an enduring




                                 - 5 -
marriage, custody of two children, and a warm relationship with

child all bespeak mother's parental fitness.   However, these

positive factors were substantially before the J&D court in 1994,

together with the continuing evidence that both mother and

grandmother were proper custodians of child.   Under such

circumstances, the trial court's finding that mother had failed

to establish the requisite change in circumstances since the 1994

order is supported by the record and not plainly wrong.
     Accordingly, we affirm the disputed order.

                                                          Affirmed.




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