Clark v. Clark

Carrico, J.,

dissenting.

I dissented in White and in Burnside, cited in the majority opinion in this case, because, as I said in Burnside, my concern was that the majority had abandoned the rule recognized in *928Mullen v. Mullen, 188 Va. 259, 270, 49 S.E.2d 349, 354 (1948), that the mother is the natural custodian of her child of tender years. The majority’s disposition of the present custody dispute demonstrates that my concern was real and not fanciful.

In both White and Burnside, the majority could at least point to something in the particular mother’s emotional makeup, or in her proposed living arrangements for the child, to justify the conclusion that the child’s welfare would be better served by continuing custody in the father. But here, absent even a hint of the unsuitability of the mother or her home, she is denied custody for the sole reason, as expressed in the majority opinion, that the children involved in this case “have now resided with their father for approximately three years” and “are doing well in their present environment.” Not on such slim grounds would I deny the mother custody or deprive the children of her unsubstitutable loving care. I would reverse.

I’Anson, C.J., joins in this dissent.