COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray Argued at Richmond, Virginia
SHARON LYNNE BOTTOMS
v. Record No. 2157-96-2 MEMORANDUM OPINION * BY JUDGE RICHARD S. BRAY PAMELA KAY BOTTOMS JULY 29, 1997
FROM THE CIRCUIT COURT OF HENRICO COUNTY Buford M. Parsons, Jr., Judge
Donald K. Butler (Player B. Michelson; Michael Adams; Matt Coles; Mary Bauer; Morano, Colan & Butler; Lesbian and Gay Rights Project American Civil Liberties Union; American Civil Liberties Union of Virginia, on briefs), for appellant. Torrence M. Harman (Harman & Harman, P.C., on brief), guardian ad litem for Kenneth Tyler Doustou.
R. R. Ryder for appellee.
The instant proceedings were commenced in the Henrico County
Juvenile and Domestic Relations District Court upon petitions of
Sharon Lynne Bottoms (mother) praying (1) for custody of her
infant son, previously awarded to his maternal grandmother,
Pamela Kay Bottoms (grandmother), by decree of the trial court,
and (2) an order requiring grandmother to "show cause why she
should not be held in contempt . . . for her repeated violations
of the visitation terms" of such decree. In response,
grandmother petitioned for termination or further restriction of
mother's rights of visitation.
Following appointment of a guardian ad litem for the child, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. the district court conducted an ore tenus hearing, dismissed the
"show cause" and declined to disturb either the custody or
visitation provisions of the existing decree. Mother appealed to
the circuit court, expressly withdrawing her petition for custody
and challenging only the visitation adjudication. The trial
court subsequently also conducted an ore tenus hearing, which
culminated in a decree dismissing mother's "show cause" petition
and substantially modifying the terms of visitation. On appeal to this Court, mother challenges those provisions
of such decree which delimit the frequency, duration and situs of
both regular and holiday visitation and expressly prohibit all
"contact . . . , including verbal contact[,]" between the child
and April Wade, mother's female housemate and sexual partner. 1
Mother complains that such constraints improperly restricted
access to the child, contrary to the rights and interests of both
mother and child, and resulted from the trial court's
unwillingness to consider relevant evidence in accordance with
statute. Mother also contends that the court erroneously
declined to order mother, grandmother, and child "into
counseling." We agree that the court failed to consider proper
evidence and reverse the disputed decree.
The parties are fully conversant with the record, and a 1 Mother's relationship with April Wade was fully discussed by this Court and the Supreme Court of Virginia in Bottoms v. Bottoms, 18 Va. App. 481, 444 S.E.2d 276 (1994), rev'd, 249 Va. 410, 457 S.E.2d 102 (1995), and remains substantially unchanged on this record.
- 2 - recitation of the facts is unnecessary to this memorandum
opinion.
It is well established that "[t]he authority vested in a
trial court to decide issues concerning the . . . custody . . .
[and] visitation rights of the non-custodial parent . . . is a
matter of judicial discretion which courts must exercise with the
welfare of the children as the paramount consideration."
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10,
11 (1986); see Code §§ 20-107.2, 20-124.2. Guided by those
factors enumerated in Code § 20-124.3, the court must fashion
"visitation arrangements" which at once promote the "best
interests" of the infant, Code § 20-124.2, and the "desirable
objective . . . that the child . . . continue to receive the
noncustodial parent's affection and nurture through the mechanism
of visitation." M.E.D. v. J.P.M., 3 Va. App. 391, 397, 350
S.E.2d 215, 219 (1986). However, "while the legal rights of a
parent should be respected . . . , those . . . rights may be
disregarded if demanded by the interests of the child." Bottoms
v. Bottoms, 249 Va. 410, 419, 457 S.E.2d 102, 108 (1995).
Manifestly, "[e]ach case . . . require[s] . . . considerable
judgment in placing conditions upon the frequency, duration,
place, and extent of visitation" appropriate to the particular
circumstances. Eichelberger, 2 Va. App. at 413, 345 S.E.2d at
12. The court must carefully scrutinize the entire record,
- 3 - weighing the pertinent statutory factors and "[s]uch other
[evidence] as the court deems necessary and proper to the
determination," Code § 20-124.3, including "the nature of the
home environment and moral climate" which may affect the child.
Bottoms, 249 Va. at 419, 457 S.E.2d at 107; see Carrico v.
Blevins, 12 Va. App. 47, 50-51, 402 S.E.2d 235, 237 (1991).
Having once adjudicated the issues of custody and visitation, the
court retains jurisdiction to modify a decree "when subsequent
events render such action appropriate for the child's welfare." Eichelberger, 2 Va. App. at 412, 345 S.E.2d at 12; see Code
§ 20-108.
Here, in restricting mother's visitation with the child
"solely" to her residence and prohibiting "contact . . . in any
manner" with April Wade, the court declared that it was "bound to
[the] precedence" of Roe v. Roe, 228 Va. 722, 324 S.E.2d 691
(1985). In Roe, the Court expressly "declined to hold that every
lesbian mother or homosexual father is per se an unfit parent,"
noting that "conduct[] in the child[]'s presence" and the attendant "impact of [such] relationship upon [the] child" were
the relevant inquiries, not simply the sexual status of the
parent or parents. Id. at 727, 324 S.E.2d at 693-94. Mindful,
however, that "'[t]he moral climate in which children are to be
raised'" warrants "'the most careful consideration in a custody
proceeding,'" the Court concluded that, "[i]n the circumstances
- 4 - of this case," the "best interests of the child" 2 dictated
divestiture of custody from the homosexual father, subject to a
residual right of specifically limited visitation. Id. at 726,
728, 324 S.E.2d at 693, 694 (emphasis added) (quoting Brown v.
Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977)).
The issue of parental sexual preference was again undertaken
by the Supreme Court in reviewing an earlier custody decree in
the instant cause. After reaffirming that mother's sexual
persuasion did not render her "per se an unfit parent," the court recognized such circumstance as reflective of the "home
environment and moral climate," an "important consideration."
Bottoms, 249 Va. at 419, 457 S.E.2d at 107-08 (emphasis added);
accord Doe v. Doe, 222 Va. 736, 748, 284 S.E.2d 799
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray Argued at Richmond, Virginia
SHARON LYNNE BOTTOMS
v. Record No. 2157-96-2 MEMORANDUM OPINION * BY JUDGE RICHARD S. BRAY PAMELA KAY BOTTOMS JULY 29, 1997
FROM THE CIRCUIT COURT OF HENRICO COUNTY Buford M. Parsons, Jr., Judge
Donald K. Butler (Player B. Michelson; Michael Adams; Matt Coles; Mary Bauer; Morano, Colan & Butler; Lesbian and Gay Rights Project American Civil Liberties Union; American Civil Liberties Union of Virginia, on briefs), for appellant. Torrence M. Harman (Harman & Harman, P.C., on brief), guardian ad litem for Kenneth Tyler Doustou.
R. R. Ryder for appellee.
The instant proceedings were commenced in the Henrico County
Juvenile and Domestic Relations District Court upon petitions of
Sharon Lynne Bottoms (mother) praying (1) for custody of her
infant son, previously awarded to his maternal grandmother,
Pamela Kay Bottoms (grandmother), by decree of the trial court,
and (2) an order requiring grandmother to "show cause why she
should not be held in contempt . . . for her repeated violations
of the visitation terms" of such decree. In response,
grandmother petitioned for termination or further restriction of
mother's rights of visitation.
Following appointment of a guardian ad litem for the child, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. the district court conducted an ore tenus hearing, dismissed the
"show cause" and declined to disturb either the custody or
visitation provisions of the existing decree. Mother appealed to
the circuit court, expressly withdrawing her petition for custody
and challenging only the visitation adjudication. The trial
court subsequently also conducted an ore tenus hearing, which
culminated in a decree dismissing mother's "show cause" petition
and substantially modifying the terms of visitation. On appeal to this Court, mother challenges those provisions
of such decree which delimit the frequency, duration and situs of
both regular and holiday visitation and expressly prohibit all
"contact . . . , including verbal contact[,]" between the child
and April Wade, mother's female housemate and sexual partner. 1
Mother complains that such constraints improperly restricted
access to the child, contrary to the rights and interests of both
mother and child, and resulted from the trial court's
unwillingness to consider relevant evidence in accordance with
statute. Mother also contends that the court erroneously
declined to order mother, grandmother, and child "into
counseling." We agree that the court failed to consider proper
evidence and reverse the disputed decree.
The parties are fully conversant with the record, and a 1 Mother's relationship with April Wade was fully discussed by this Court and the Supreme Court of Virginia in Bottoms v. Bottoms, 18 Va. App. 481, 444 S.E.2d 276 (1994), rev'd, 249 Va. 410, 457 S.E.2d 102 (1995), and remains substantially unchanged on this record.
- 2 - recitation of the facts is unnecessary to this memorandum
opinion.
It is well established that "[t]he authority vested in a
trial court to decide issues concerning the . . . custody . . .
[and] visitation rights of the non-custodial parent . . . is a
matter of judicial discretion which courts must exercise with the
welfare of the children as the paramount consideration."
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10,
11 (1986); see Code §§ 20-107.2, 20-124.2. Guided by those
factors enumerated in Code § 20-124.3, the court must fashion
"visitation arrangements" which at once promote the "best
interests" of the infant, Code § 20-124.2, and the "desirable
objective . . . that the child . . . continue to receive the
noncustodial parent's affection and nurture through the mechanism
of visitation." M.E.D. v. J.P.M., 3 Va. App. 391, 397, 350
S.E.2d 215, 219 (1986). However, "while the legal rights of a
parent should be respected . . . , those . . . rights may be
disregarded if demanded by the interests of the child." Bottoms
v. Bottoms, 249 Va. 410, 419, 457 S.E.2d 102, 108 (1995).
Manifestly, "[e]ach case . . . require[s] . . . considerable
judgment in placing conditions upon the frequency, duration,
place, and extent of visitation" appropriate to the particular
circumstances. Eichelberger, 2 Va. App. at 413, 345 S.E.2d at
12. The court must carefully scrutinize the entire record,
- 3 - weighing the pertinent statutory factors and "[s]uch other
[evidence] as the court deems necessary and proper to the
determination," Code § 20-124.3, including "the nature of the
home environment and moral climate" which may affect the child.
Bottoms, 249 Va. at 419, 457 S.E.2d at 107; see Carrico v.
Blevins, 12 Va. App. 47, 50-51, 402 S.E.2d 235, 237 (1991).
Having once adjudicated the issues of custody and visitation, the
court retains jurisdiction to modify a decree "when subsequent
events render such action appropriate for the child's welfare." Eichelberger, 2 Va. App. at 412, 345 S.E.2d at 12; see Code
§ 20-108.
Here, in restricting mother's visitation with the child
"solely" to her residence and prohibiting "contact . . . in any
manner" with April Wade, the court declared that it was "bound to
[the] precedence" of Roe v. Roe, 228 Va. 722, 324 S.E.2d 691
(1985). In Roe, the Court expressly "declined to hold that every
lesbian mother or homosexual father is per se an unfit parent,"
noting that "conduct[] in the child[]'s presence" and the attendant "impact of [such] relationship upon [the] child" were
the relevant inquiries, not simply the sexual status of the
parent or parents. Id. at 727, 324 S.E.2d at 693-94. Mindful,
however, that "'[t]he moral climate in which children are to be
raised'" warrants "'the most careful consideration in a custody
proceeding,'" the Court concluded that, "[i]n the circumstances
- 4 - of this case," the "best interests of the child" 2 dictated
divestiture of custody from the homosexual father, subject to a
residual right of specifically limited visitation. Id. at 726,
728, 324 S.E.2d at 693, 694 (emphasis added) (quoting Brown v.
Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977)).
The issue of parental sexual preference was again undertaken
by the Supreme Court in reviewing an earlier custody decree in
the instant cause. After reaffirming that mother's sexual
persuasion did not render her "per se an unfit parent," the court recognized such circumstance as reflective of the "home
environment and moral climate," an "important consideration."
Bottoms, 249 Va. at 419, 457 S.E.2d at 107-08 (emphasis added);
accord Doe v. Doe, 222 Va. 736, 748, 284 S.E.2d 799, 806 (1981);
Carrico, 12 Va. App. at 50-51, 402 S.E.2d at 237.
Thus, both Code § 20-124.3 and controlling appellate
decisions clearly instruct that the parental rights of custody
and related visitation suitable to each instance must evolve from
a myriad of considerations, all calculated to exalt and promote
the best interests of the child. While issues of adult sexuality
and related behavior are significant to an adjudication of
visitation, such factors must be assessed by the court together
with other relevant circumstances and balanced in a visitation
2 The record in Roe indicated that the child was "unhappy" in her homosexual father's home, "hate[d]" her father's companion and wished a return to her mother. 228 Va. at 724, 324 S.E.2d at 692.
- 5 - arrangement which both benefits and protects the child.
Here, however, the trial court misconstrued Roe to require a
disposition based solely upon mother's sexual status, implicitly
ignoring evidence of other pertinent statutory factors and
without regard to evidence of the impact of attendant conduct on
the child. The disputed order, therefore, did not emanate from a
proper analysis of relevant evidence. Similarly, the trial court
erroneously declined to consider evidence of the relationship
between mother and grandmother. Clearly, the interaction of
mother and grandmother, and its effects upon mother's visitation
with the child and upon the child, is pertinent to the court's
resolution of the instant petition and a factor contemplated by
the provisions of Code § 20-124.3. Accordingly, we reverse the decree and remand to the trial
court for reconsideration of the evidence consistent with this
opinion, including any additional evidence deemed appropriate by
the court to a proper disposition of the petitions. Reversed and remanded.
- 6 -