Penny Carter v Joan Brown

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.

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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
mother.1 Mother failed to prosecute an appeal of this order, and
it became a final adjudication of her petition.2
1Mother'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."
2Mother'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

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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).

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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

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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.