COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
BUFFIE SUE CARTER
OPINION BY
v. Record No. 1946-00-3 JUDGE G. STEVEN AGEE
MAY 15, 2001
JUSTIN GRAY CARTER
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Peter J. Schwartz (Walter F. Green, IV, on
brief), for appellant.
Roger B. Willetts (Catherine A. McGuire;
Edmunds, Willetts & Frank, P.C., on brief),
for appellee.
In 1996, Buffie Sue Carter (the appellant) married Justin
Carter (the father). Subsequently, the father adopted the
appellant's five-year-old son, whom he had helped raise since
birth. The appellant and the father also have a biological
daughter.
In 1998, the parties separated. In a child custody order of
December 21, 1999, the Augusta County Juvenile and Domestic
Relations District Court awarded custody of both children to the
father, finding such custody award to be in the best interests of
the children. The appellant appealed this order to the circuit
court. On August 1, 2000, the Augusta County Circuit Court
awarded custody of both children to the father. The appellant
appeals that decision to this Court.
The appellant does not contest the custody order as it
applies to the couple's daughter. She argues that the trial
court erred concerning her son's custody by not applying a
presumption of custody in her favor as the biological parent over
the father, the son's adoptive parent. 1 We disagree because such
a presumption does not exist under Virginia law.
Pursuant to Code § 63.1-219.22, previously codified at Code
§ 63.1-233, any child adopted shall "be, to all intents and
purposes, the child of the person so adopting him [or her], and
. . . shall be entitled to all the rights and privileges, . . .
of a child of such a person born in lawful wedlock."
Accordingly, when an order of adoption becomes final, the
adoptive parent obtains all the legal rights and obligations of a
natural parent. See Frye v. Spotte, 4 Va. App. 530, 533, 359
S.E.2d 315, 317 (1987). The adoptive parent, in a stepparent
adoption, becomes a joint guardian of the minor child along with
the birth parent and is equally and jointly charged with the
child's care, nurture, welfare, education and support. Once the
1
The appellant presented the issue on appeal as follows:
"Did the Trial Court err in ruling that there is no presumption
in favor of a natural parent over [a] non-natural parent in a
custody case?" This question as presented, however, is
misleading and our opinion focuses solely on the facts presented
in this case, which involve a custody determination between a
child's biological parent and adoptive parent.
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adoption is final, there is no distinction in law between the
biological parent and the adoptive parent; they are parents to
that child of equal rank and responsibility. The appellant and
the father were, therefore, equally entitled to consideration as
the custodial parent of their son.
Despite Code § 63.1-219.22, the appellant argues that the
Commonwealth, as a matter of law, has a presumption in favor of
the biological parent. She cites Bailes v. Sours, 231 Va. 96,
340 S.E.2d 824 (1986); Walker v. Brooks, 203 Va. 417, 124 S.E.2d
195 (1962); and Judd v. Van Horn, 195 Va. 988, 81 S.E.2d 432
(1954), in support of this proposition. Upon a review of these
cases, we find that the Supreme Court of Virginia has adopted a
presumption favoring a natural parent over a third party in a
custody case where the third party is not an adoptive parent.
However, this presumption is not applicable to the matter at bar
because the father is not a third party but, rather, is a parent
with all the rights and duties to the child as if that child had
been born to him.
Our decision, while of first impression in the Commonwealth,
is compatible with the case law of other jurisdictions. For
instance, in Ivey v. Ivey, 445 S.E.2d 258 (Ga. 1994), the father
appealed the custody order giving custody of the couple's two
children to their mother, "especially [pertaining to] the oldest
child," pointing out that he was the biological parent of both
children while the mother was the oldest child's adoptive parent.
The father argued that in a custody battle between a biological
parent and an adoptive parent, there should be a rebuttable
presumption that custody should be awarded to the biological
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parent.
The Supreme Court of Georgia rejected this argument:
"A decree of adoption creates the
relationship of parent and child between
[the adoptive parent] and the adopted
individual, as if the adopted individual
were a child of biological issue of the
[adoptive parent]." Thus, an adoptive
parent stands on the same footing and has
the same rights and obligations as a
biological parent. It follows that in a
custody dispute between a biological parent
and an adoptive parent preference cannot be
given to the biological parent. The test in
a custody case of that kind is the same as
in any child custody case, i.e., what is in
the best interest of the child.
Id. at 260. See also Commonwealth ex rel. Michael R. v. Robert
R. R., 437 A.2d 969, 972 (Pa. Super. Ct. 1981) ("A decree of
adoption directs 'that the person proposed to be adopted shall
have all the rights of a child and heir of the adopting parent
. . . and shall be subject to the duties of a child to him
. . . .' For the purposes of determining custody, therefore,
[son] is as much the father's son as he is the mother's.").
Accordingly we uphold the trial court's decision not to
apply a presumption in favor of the biological parent. The
decision of the trial court, which was based on the best
interests of the child pursuant to Code § 20-124.3, is affirmed.
Affirmed.
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