Bailes v. Sours

• Decision Date: 07 March 1986
• Docket Number: No. 841885,841885
• Citation: 231 Va. 96,340 S.E.2d 824
• Parties: Frances Jean BAILES v. Carol Elaine SOURS. Record
• Court: Virginia Supreme Court

Page 824

340 S.E.2d 824

231 Va. 96

Frances Jean BAILES v. Carol Elaine SOURS.

Record No. 841885.

Supreme Court of Virginia.

March 7, 1986.

James E. Wilcox, Jr. (Clayton & Wilcox, Burke, on briefs), for appellant.

Jean Harrison Clements, Leesburg (Gary V. Davis, McLean, on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

This appeal involves a child custody dispute between the child's natural mother, Frances Jean Bailes (Jean), and his stepmother, Carol Elaine Sours (Elaine). The cause was heard initially in the Juvenile and Domestic Relations District Court of Loudoun County in February 1984, where custody of the child, Michael Sean Sours (Sean), was granted to Jean. Elaine appealed the decision to the circuit court where, in a trial de novo, the court heard the evidence ore tenus and awarded custody to Elaine in September 1984. Jean appeals.

The material facts are undisputed. In October 1971, Jean and Wayne Sours were married. Sean, their only child, was born on May 23, 1972. Jean and Wayne separated in June 1973, and Sean, 13 months old at the time, moved with his father to a separate residence.

After the separation, Jean sought Sean's custody by petitioning the Juvenile and Domestic Relations District Court of Fairfax County. By order entered February 24, 1974, the district court, with Jean's consent, awarded custody to Wayne. The court awarded Jean reasonable visitation rights, including the right to have Sean visit in her home on alternate weekends. Jean and Wayne were divorced on October 3, 1975; the divorce decree, however, contained no provision concerning Sean's custody.

Thereafter, on October 5, 1975, Wayne married Elaine, and a son was born to this marriage in December 1977. Similarly, Jean married James Bailes, and a son was born to that marriage in December 1977. Sean lived with his father and Elaine until Wayne's death in July 1983, and he has resided with Elaine thereafter.

For the eleven months immediately following the separation, Jean and Sean visited on a regular basis. Jean testified, however, that when Sean was two years old "he started screaming that he didn't want to come [visit] with [her], so [she] never made him come." Wayne took the position that he would not force Sean to visit Jean against his will. Wayne repeatedly threatened to take Sean away and prevent Jean from seeing him if she tried to force the visits. When Jean would ask to see Sean, Wayne would tell her that her requested visits were causing Sean to "wet the bed" and to have "psychological problems." In any event, Jean's contact with Sean diminished appreciably over the years. Jean testified that Sean visited with her only "eight or ten" times during a nine-year period. Prior to Wayne's death, Sean's last visit in Jean's home was on his seventh birthday.

Sean has developed a close and loving relationship with his stepmother Elaine. Through the years, Elaine assumed the role of Sean's mother, and, indeed, he refers to her as his "mother." Sean's home with Elaine and his half brother is the only one he has known. Sean also has a close and affectionate relationship with Wayne's and Elaine's parents whom he sees frequently. They and Elaine lend support and stability to Sean's physical and emotional needs.

Since Wayne's death, Sean has talked with Jean on the telephone and has visited at Jean's home every other weekend. Neighbors testified that Jean and Sean display a good relationship during these visits. According to Elaine, however, Sean is reluctant to visit or talk with Jean.

Sean and his father enjoyed a very close relationship. He continues to mourn his father's death. The loss of his father and the custody dispute that began immediately thereafter have disturbed him a great deal. Sean has experienced bed wetting and has suffered from eczema; consequently, he has come under the care of a clinical psychologist.

The psychologist found that Sean was "very upset" over the prospect of leaving Elaine and living with Jean, and that Sean's bed wetting and eczema were directly related to his anxiety. Sean told the doctor that he would run away if he were forced to live with Jean, and the doctor opined there was a "good possibility that [Sean] would take [this] action."

In addition, the psychologist found that Sean experiences "tension ... when he is with [Jean] and when he speaks to [her] on the telephone." The doctor concluded that forcing Sean to move to his mother's home would have an adverse, harmful impact on Sean and that remaining with Elaine was in his best interest. The doctor further stated that a change in Sean's custody would create more tension "until he could no longer tolerate the anxiety ... [at which] point, he probably would explode." The psychologist did not rule out suicide, observing that Sean "has had fantasies of joining his father" in death.

The trial court examined Sean to ascertain his wishes in the matter. Sean told the court, as he repeatedly had told others, that he wished to remain with Elaine, stating, "she was his life."

The evidence established that both Jean and Elaine are fit and proper persons to have custody of Sean. Moreover, each is capable of providing him with a suitable home in a moral climate. Thus, Jean contends on appeal, as she did at trial, that because she is a fit and proper parent with a suitable home, the law presumes that her right to Sean's custody is superior to that of a non-parent's. Jean asserts that Sean's best interests, as a matter of law, will be served by awarding her custody.

Although the trial court recognized the presumption favoring a parent over a non-parent, it concluded that the presumption was neither "conclusive" nor "automatic." Additionally, the court found that the presumption had been rebutted "by clear, cogent and convincing evidence that the best interests of Sean demand that he remain in [Elaine's] custody."

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 in determining the dispute." Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198 (1962). In making this determination, the wishes of a child who has reached the age of discretion, though not controlling, should be considered and given appropriate weight. Patrick v. Byerley, 228 Va. 691, 695, 325 S.E.2d 99, 101 (1985); Hall v. Hall, 210 Va. 668, 672, 173 S.E.2d 865, 868 (1970); Hepler v. Hepler, 195 Va. 611, 620, 79 S.E.2d 652, 658 (1954).

It has been long recognized that "as between a natural parent and a third party, the rights of the parent are, if at all possible, to be respected, such rights being founded upon natural justice and wisdom, and being essential to the peace, order, virtue and happiness of society." Walker, 203 Va. at 421, 124 S.E.2d at 198. Consequently, in a custody dispute between a parent and a non-parent, "the law...