Opinion
Record No. 1891-91-3
December 15, 1992
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY BEVERLY A. DAVIS, III, JUDGE.
J. Patterson Rogers, 3rd, for appellant.
No brief or argument for appellee.
Present: Chief Judge Koontz, Judges Moon and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
This case is reversed and remanded for reconsideration in light of the presumption in favor of parental 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." In 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. Based on this presumption, "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." To overcome the strong presumption favoring a parent, the nonparent must adduce by clear and convincing evidence that: (1) the parents are unfit; . . . 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) (citations omitted).
On October 11, 1990, the trial court issued a letter opinion stating, in part:
I have had the benefit of seeing both parents,
listening to their testimony, and without making a finding that either parent is unfit, I do find that Mr. Dickerson's (sic) parenting skills and home facilities are questionable and that Mrs. Dickerson's (sic) presence and testimony raises serious questions as to her emotional stability.
The court ordered a study of the home of Sandra Conner, the child's adult sibling. On September 26, 1991, it entered the decree to which this appeal is addressed, holding, in part:
After hearing the evidence ore tenus and upon consideration of the home studies filed herein, it ADJUDGED, ORDERED and DECREED (sic) that the Pittsylvania County, Virginia Circuit Court assumes legal custody of Kimberly Dickenson, and places physical custody with Sandra Dickenson Conner.
The decree made no reference to the October 11, 1990 letter opinion, made no findings as to the fitness of the natural parents to have custody, made no findings as to special circumstances overcoming the presumption in favor of parental custody, and made no stated determination of the child's best interests. This holding did not comply with the required standard of decision.
The judgment of the trial court assuming custody of Kimberly Dickenson and placing her physical custody with Sandra Dickenson Conner is reversed, and this case is remanded to the trial court for reconsideration in light of the holding ofMason v. Moon.
Reversed and remanded.