Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Russell, S.J.
JOSEPH C. FLORIO OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 081080 April 17, 2009
BARBARA C. CLARK, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
This is an appeal by a parent from an order awarding
custody of his child to non-parents.
Facts and Proceedings
Applying familiar principles of appellate review, we will
state the facts in the light most favorable to the parties
prevailing in the trial court. In January 1996, Mary Childers
gave birth to a child, Jacob Florio. Jacob’s biological
father was Joseph C. Florio, but the parents never married and
were separated by the time of Jacob’s birth. In April 1997,
the Gloucester County Juvenile and Domestic Relations District
Court (JDR court) entered an order that provided: “By
agreement of parties, custody of the above named child is
hereby granted to his mother, Mary L. Childers. Liberal
visitation to his father, Joseph C. Florio.” In July 1996,
when the infant was six months old, the mother and Jacob moved
in with the mother’s sister, Barbara E. Clark and her husband,
William B. Clark. Twelve months later, in July of 1997, the
mother, with Jacob, moved from the Clarks' home to live with
the mother’s new boyfriend, who lived just "two cornfields”
away from the Clarks.
During the next four years, the Clarks visited Jacob and
his mother two to three times every week and took vacations
together. Florio exercised his visitation rights infrequently
during this period. He would state his intention to pick
Jacob up, usually on a Sunday, but “most of the time he did
not show up.” During those years, William Clark acted as a
surrogate father to Jacob, ensuring that he did his homework,
taking him to sports activities and on trips, including his
first visit to a dentist.
In 2001, Mary Childers developed serious heart disease
and the Clarks assumed more of Jacob’s day-to-day care. Jacob
went back to live with the Clarks in January 2002 and his
mother died two months later. Shortly before her death, Mary
Childers executed a will in which she nominated her sister,
Barbara Clark, as Jacob’s guardian.
Two days after Mary Childers' death, without notice to
the Clarks, Florio filed a petition in the JDR court for
custody of Jacob. That court entered an order transferring
custody to Florio, pendente lite. Joyce Childers, Jacob’s
maternal grandmother, and the Clarks, filed petitions for
custody. The court appointed a guardian ad litem for Jacob
and continued the case, ordering home studies, counseling for
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Jacob, and a substance abuse evaluation of Florio. Florio had
custody of Jacob for five months in 2002, during which the two
of them lived in a trailer on Florio’s mother’s farm. Florio
had no driver’s permit during this time and Florio’s mother
and stepfather had to meet his and Jacob’s needs for
transportation.
In August 2003, the JDR court awarded Jacob’s custody to
the Clarks, ruling that Florio was not a fit person to have
Jacob’s custody. Florio appealed to the circuit court, which
entered a final order on October 6, 2004, awarding custody to
the Clarks. Florio appealed to the Court of Appeals, which,
by unpublished memorandum opinion dated July 26, 2005,
reversed the circuit court’s judgment for error in the
admission of evidence and remanded the case for further
proceedings. The circuit court reheard the case on remand and
entered a final order on September 3, 2006, awarding custody
to the Clarks. Florio took a second appeal to the Court of
Appeals, which affirmed the judgment of the circuit court by a
divided panel decision. Florio requested a rehearing en banc,
which was granted. The Court of Appeals, sitting en banc,
approved the panel decision and adopted its majority opinion
by order entered May 13, 2008, awarding custody of Jacob to
the Clarks. We awarded Florio an appeal. With the exception
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of the five-month period in 2002 mentioned above, Jacob has
lived with the Clarks from January 2002 until the present.
Analysis
The circuit court heard the evidence ore tenus. Its
findings are entitled to the weight given to a jury verdict
and will not be disturbed on appeal unless, upon a review of
the whole record, they are plainly wrong or without evidence
to support them. Gray v. Gray, 228 Va. 696, 699, 324 S.E.2d
677, 679 (1985). Code § 20-124.2(B) provides in pertinent
part:
In determining custody, the court shall give primary
consideration to the best interests of the child.
. . . The court shall give due regard to the
primacy of the parent-child relationship but may
upon a showing by clear and convincing evidence that
the best interest of the child would be served
thereby award custody or visitation to any other
person with a legitimate interest.
In Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986), we
set forth the principles governing a custody determination
between a parent and a non-parent:
In all child custody cases, including those between
a parent and a non-parent, the best interests of the
child are paramount and form the lodestar for the
guidance of the court . . . .
[I]n a custody dispute between a parent and a non-
parent, the law presumes that the child’s best
interests will be served when in the custody of its
parent.
Although the presumption favoring a parent over
a non-parent is a strong one, it is rebutted when
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certain factors are established by clear and
convincing evidence. We have held that such factors
include: (1) parental unfitness; (2) a previous
order of divestiture; (3) voluntary relinquishment;
. . . (4) abandonment[; and (5)] special facts and
circumstances . . . constituting an extraordinary
reason for taking a child from its parent, or
parents.
Id. at 99-100, 340 S.E.2d at 826-27 (citations and internal
quotation marks omitted).
Once the presumption favoring parental custody has been
rebutted, the natural parent who seeks to regain custody must
bear the burden of proving that custody with him is in the
child’s best interests. See Shortridge v. Deel, 224 Va. 589,
594, 299 S.E.2d 500, 503 (1983).
Applying those principles to the record in the present
case, we conclude that the trial court’s judgment was
supported by clear and convincing evidence sufficient to rebut
the presumption in favor of the natural father, and that
Florio did not carry the burden of proving that custody with
him would be in the child’s best interests. We find no merit
in Florio’s contention that the trial court applied an
incorrect legal standard.
Among the factors considered by the trial court were the
following:
(1) Florio had agreed to leave Jacob in his mother’s sole
custody during her lifetime and sought Jacob’s custody for the
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first time, after her death, when Jacob was six. During those
formative years, Florio showed little interest in Jacob,
visiting him very rarely.
(2) Florio never paid any child support for Jacob, either
during the six years Jacob was with his mother or during the
subsequent years when Jacob was in the Clarks' custody.
(3) Florio has an extensive record of misdemeanor and
traffic offenses from 1993 until 2001, including seven “drunk
in public” convictions, three “driving under the influence”
convictions, two other traffic infractions, one conviction
each of “trespassing,” “hit and run,” and “obstructing a law
enforcement officer by threat or force in the performance of
his duty.” His driver’s permit was suspended three times and
ultimately revoked.
(4) Jacob has special needs, having been diagnosed by a
clinical psychologist with attention deficit hyperactivity
disorder and a learning disorder.
(5) At 39 years of age, Florio had no home of his own at
the time of trial, residing with his father and stepmother.
He was building a house for himself on his father’s land but
it was uncompleted. He dropped out of high school in the 10th
grade and never earned a G.E.D. He worked with his father in
a dog grooming and kennel business on his father’s property.
The trial court found that he had been “less than honest with
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the IRS” and “less than forthright” with the investigators
appointed by the court. Florio had no health insurance and
provided none for Jacob. He has shown no ability to deal with
Jacob’s emotional, educational and health needs.
(6) The Clarks have supported and cared for Jacob
continuously since 2002, providing him with a very good home.
Both Clarks served in the U.S. Air Force and have college
degrees. William Clark has a master’s degree in business
management and has worked continuously as an air traffic
controller employed by the Federal Aviation Administration for
24 years. The Clarks have furnished Jacob with health
insurance since 2002 and have been attentive to his emotional,
educational and health needs.
It is clear that Florio has a very strong desire to have
Jacob’s custody and that father and son have an affectionate
relationship. Florio has, according to the report of the
guardian ad litem, “turned his life around” in recent years.
Florio testified that he had attended many Alcoholics
Anonymous meetings, had ceased drinking alcohol entirely, and
had become religious. He had no record of criminal offenses
after 2001.
At age 10, Jacob expressed a preference to live with his
father, although he was fond of the Clarks and was relaxed,
happy, and comfortable in their home. The guardian ad litem
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was of the opinion that Florio was unfit as a custodian in
2001, but no longer unfit in 2006. She recommended joint
custody between Florio and the Clarks, but primary physical
custody with the Clarks. The trial court rejected that
disposition because of strong animosity between Florio and the
Clarks, and awarded custody to the Clarks with frequent,
specified visitation to Florio.
Conclusion
Even if we assume, without deciding, that no single
factor outlined above would be sufficient to rebut the
presumption in favor of the natural father, the totality of
the record is sufficient to support, by clear and convincing
evidence, the trial court’s holding that the presumption was
rebutted by “special facts and circumstances . . .
constituting an extraordinary reason for taking a child away
from its parent.” Bailes, 231 Va. at 100, 340 S.E.2d at 827.
After that holding, a clear preponderance of the evidence
supports the conclusion that the child’s best interests would
be served by the disposition made by the trial court and
affirmed by the Court of Appeals. We will, therefore, affirm
the judgment of the Court of Appeals.
Affirmed.
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