Janie Strong Nicklaus v David Strong, et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
JANIE STRONG NICKLAUS
v. 	Record No. 0076-95-2 	MEMORANDUM OPINION*
PER CURIAM
DAVID STRONG 	OCTOBER 31, 1995
AND
VIRGINIA STRONG
FROM THE CIRCUIT COURT OF LOUISA COUNTY
F. Ward Harkrader, Jr., Judge
(John R. Maus, on briefs), for appellant.
(Stephen C. Harris, on brief), for appellees.
Janie Strong Nicklaus appeals the decision of the circuit
court awarding custody of Nicklaus's infant daughter to David
Strong. 	Nicklaus asserts that the trial court erred in finding
that she was an unfit mother, that she had voluntarily
relinquished custody of the child, and that special facts and
circumstances existed to warrant removing custody of the child
from her as the natural parent. 	Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. 	Accordingly, we summarily affirm the decision of the
trial court. 	Rule 5A:27.
The record in this case is composed of the court's letter
opinion and final order. 	Both documents set out the evidence
upon which the trial court relied in reaching its decision to
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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award custody of the minor child to Strong. 	While blood tests
indicated Strong was not the child's biological father, he was
identified as the father on the child's birth certificate. 	"In
matters concerning custody and visitation, the welfare and best
interests of the child are the 'primary, paramount, and
controlling consideration[s].'" 	Kogon v. Ulerick, 12 Va. App.
595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). 	The
trial court is vested with broad discretion to make the decisions
necessary to safeguard and promote the child's best interests,
and its decision will not be set aside unless plainly wrong or
without evidence to support it. 	Farley v. Farley, 9 Va. App.
326, 327-28, 387 S.E.2d 794, 795 (1990).
"Although the presumption favoring a parent over a
non-parent is strong, it is rebutted when certain factors, such
as parental unfitness, are established by clear and convincing
evidence." 	Bottoms v. Bottoms, 249 Va. 410, 413, 457 S.E.2d 102,
104 (1995). 	Other factors which may rebut the presumption
favoring the biological parent include a previous order of
divestiture, voluntary relinquishment, abandonment, or "a finding
of 'special facts and circumstances . . . constituting an
extraordinary reason for taking a child from its parent, or
parents.'" 	Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d 824, 827
(1986) (citation omitted). 	Code § 20-124.2(B) now provides that
custody may be awarded to "any other person with a legitimate
interest" if clear and convincing evidence shows the best

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interests of the child so warrant. 	Clear and convincing evidence
is the degree of proof "that will produce in the mind of the
trier of facts a firm belief or conviction upon the allegations
sought to be established." 	Bottoms, 249 Va. at 413, 457 S.E.2d
at 104. 	The party seeking to change custody from the parent
bears the burden to show unfitness. 	Id.
The trial court found by clear and convincing evidence that
mother was unfit. 	Nicklaus abused the child when she was small.
Furthermore, the child's counselor believed, based upon evidence
gathered in the months immediately prior to the court's hearing,
that Nicklaus's current husband sexually and physically abused
the child. 	Significantly, the counselor "could find no evidence
that [Nicklaus] could or would protect the infant child from
further abuse." 	In addition, both Nicklaus and her new husband
failed to comply with previous court orders to obtain counseling.
Nicklaus's new husband began counseling only after ordered to do
so by a Florida court following an incident of domestic abuse
against Nicklaus. 	Even witnesses called on behalf of Nicklaus
indicated that her home lacked peace and tranquility and that
"loud voices and screaming . . . are normal fighting."1 In
contrast, the court found the family life offered by Strong was
one of "security, stability, constancy, and love" based upon "a
schedule that accommodates [the child's] needs appropriately."
1The court also noted that, when the child was one year old,
Nicklaus had voluntarily relinquished physical custody of the
child for a year to Connie Strong, Strong's sister-in-law.

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In addition, the court found that the fact that both the child
and Strong believed he was her biological father constituted an
extraordinary reason for taking the child from Nicklaus. 	The
child viewed Strong and his wife as her parents and Strong "has
always acted in that role in his own mind."
The trial court found that clear and convincing evidence
established that it was in the best interests of the child to
grant custody to Strong, with visitation to Nicklaus. 	We cannot
say that the trial court's finding was plainly wrong or without
evidence to support its finding that Nicklaus's abuse of the
child, the volatile nature of the relationship with her current
husband, her voluntary relinquishment of the child to Connie
Strong, and the unique relationship formed by Strong and the
child support the finding. 	Accordingly, the decision of the
trial court is summarily affirmed.
Affirmed.