Opinion
Record No. 1169-92-2
December 15, 1992
FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY WILLIAM L. PERSON, JR., JUDGE.
(Sharon Gregory Jacobs; Morchower, Luxton and Whaley, on brief), for appellant.
(W. Christopher Currie; Morano, Colan Butler, on brief), for appellee.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and the briefs of the parties, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the circuit court. Rule 5A:27.
Blanche Taylor appeals the decision of the trial court awarding custody of her granddaughter, Samantha Taylor, to Denise Smith. Taylor's son, Spencer, Samantha's father, murdered Samantha's mother and fled with the child. He left Samantha with his sister on the understanding that she would be taken to his mother, Blanche Taylor, and surrendered to authorities. Taylor was subsequently convicted of first degree murder. Denise Smith, the murdered woman's sister, petitioned for custody of the child. After hearing evidence, the trial court awarded custody of Samantha to Denise Smith, with regular visitation accorded to Blanche Taylor.
Taylor contends on appeal that the court erred in awarding custody of the child contrary to (1) the wishes of the natural parent; and (2) the child's best interests and good moral development. On the first issue, Taylor argues that her son retains his parental right to custody of Samantha and that his implied choice of her physical custodian controls. There is no evidence, however, of Spencer Taylor's wishes regarding Samantha's custody, except Blanche Taylor's statement, "when [Spencer] gave hi[m]self up, he brought her to my daughter's home in Richmond there. I told him to take her there until I can get her to my home."
The issue before us in this case does not place the custodial rights of a parent at odds with those of a nonparent. Spencer Taylor's parental rights have not been terminated. The court's obligation here was to decide which of two nonparents should have custody of the child during her father's incarceration. Therefore, the presumption in favor of a parent's rights,see Wilkerson v. Wilkerson, 214 Va. 395, 397, 200 S.E.2d 581, 583 (1973); Mason v. Moon, 9 Va. App. 217, 220, 385 S.E.2d 242, 244 (1989), is not at issue. Although a custodial parent has the right, and even the duty, to entrust care of his children to another when he is unable to care for them himself, Bennett v. Commonwealth, 8 Va. App. 228, 232, 380 S.E.2d 17, 19 (1989), this right is not absolute but is guided by the best interests of the child. See Mason v. Moon, 9 Va. App. at 220, 385 S.E.2d at 244.
The second claim, regarding Samantha's moral development, is based upon testimony of a private investigator hired by Taylor that a man had once remained overnight in the Smith home, while Smith's unmarried sister was also present. The investigator had watched the Smith home on numerous occasions over a period in excess of two months, and this was his only arguably negative observation, which Smith and her sister vehemently denied.
On appeal, we review the evidence in the light most favorable to the prevailing party. The trial court's findings with respect to the credibility of witnesses and the weight to be given their testimony is on the same footing as a jury verdict.Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 16 (1987). We cannot disturb the judgment of the trial court based on evidence heard ore tenus unless it is plainly wrong or without evidence to support it. Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988).
The trial court's primary responsibility was to determine which custodian was best suited to promote the interests of the child.Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795 (1990). The trial court has broad discretion in custody matters, and its decision is reversible on appeal only if that discretion is abused. Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986).
Smith has children near Samantha's age; the ages of Smith and her husband are "compatible with the bringing up of the child;" Smith's health insurance will cover Samantha; and, because of their financial situation, the Smiths are better able to bear the cost of supporting her. Guided by the best interests of the child, the trial court concluded that Samantha's needs will be better served with Smith and her family, and we cannot say that this ruling constituted an abuse of discretion.
For the reasons stated, we affirm the circuit court's decision.
Affirmed.