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.
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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.
- 7 -