Dyer v. Howell
| Decision Date | 29 November 1971 |
| Citation | 184 S.E.2d 789,212 Va. 453 |
| Parties | Charles G. DYER, Jr., et al. v. Thomas Coleman HOWELL et al. (three cases). |
| Court | Virginia Supreme Court |
Edward E. Lane, Richmond, for appellants.
James M. Minor, Jr., Richmond (William C. Wood, Minor, Thompson, Savage, Smithers & Benedetti, Richmond, on the brief), for appellees.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.
This controversy involves questions of the custody and adoption of Kathryn Lynn Dyer (Kathy), now seven years old. The three appeals before us bring up for review (1) the trial court's denial of a petition filed by Charles G. Dyer, Jr., natural father of Kahy, praying that her custody be changed from Thomas C. and Rebecca Lane Howell, the child's maternal aunt and uncle, to himself, (2) its denial of the petition of Carole Williams Dyer, present wife of the natural father, for adoption of Kathy, and (3) its granting of the petition of the Howells for the adoption of Kathy.
The evidence shows that Charles G. Dyer, Jr., married his first wife, Emma Lane Dyer, in March, 1964, when he was sixteen and she was fifteen years of age. On November 11, 1964, Kathryn Lynn Dyer, the infant around whom this controversy revolves, was born to this couple.
On November 30, 1965, Dyer killed his wife. On that day, upon a petition filed by a police officer alleging that Kathy was 'without proper parental care and supervision,' the Juvenile and Domestic Relations Court of Henrico County assumed Kathy's custody. She was placed in 'the temporary custody of the Henrico County Probation Department,' which in turn placed her with the Howells, where she has resided ever since.
Pursuant to an agreement with the Howells, Dyer was permitted the privilege of having Kathy visit with him. However, this privilege was later terminated on the advice of a child psychiatrist because the visits with the father were upsetting Kathy.
On January 21, 1966, the Howells petitioned the trial court for the adoption of Kathy. This proceeding was delayed in order to obtain Dyer's consent to and ascertain his feelings about such adoption. When a welfare report disclosed his opposition to the adoption, the case was continued generally.
On January 11, 1967, Dyer was tried in the Circuit Court of Henrico County for the murder of his wife and was found not guilty by reason of insanity. He was committed to a state hospital where he remained until August, 1967. On August 3, 1967, the court entered an order reciting that Dyer was not 'mentally ill' but was 'mentally competent' and providing that he be 'forthwith discharged and released.' The order further provided that Dyer report to Dr. James Asa Shield, a psychiatrist, for such examination and treatment as the doctor deemed necessary. Dyer remained under Dr. Shield's care until September, 1969.
Following his discharge and release by the Circuit Court, Dyer was summoned to Juvenile Court for a hearing concerning Kathy's custody. On November 10, 1967, that court formally awarded Kathy's custody to the Howells. An appeal was taken from this award but the appeal was later withdrawn.
On June 28, 1968, Dyer married Carole Williams, and in April, 1969, a son was born to them. In December, 1969, Dyer filed his present petition for change of Kathy's custody. He also filed an answer to the Howell petition for adoption, stating his opposition thereto. Then Carole Williams Dyer filed her petition for adoption of Kathy, attaching Dyer's consent.
In March, 1970, the three cases, I.e., the Howell petition for adoption, Dyer's petition for change of custody, and Mrs. Dyer's petition for adoption, came on to be heard together. In August, 1970, the trial court announced its decision in a written opinion.
The court found that it would not be in the best interests of Kathy to alter her custody. It therefore denied Dyer's petition for a change of custody and Mrs. Dyer's petition for adoption. The court further found that 'the future welfare of the infant in question will be best promoted' by granting the Howell adoption petition and that the natural father's consent thereto was being withheld contrary to the child's best interests. The court accordingly granted the Howell petition for adoption of Kathy. The rulings were incorporated in orders entered November 2, 1970.
It is from these rulings that the Dyers appeal. Their assignments of error present two questions: (1) Did the trial court err in refusing Dyer's petition for a change of Kathy's custody and in consequently refusing Mrs. Dyer's petition for adoption? (2) Did the trial court err in then granting the Howell petition for adoption?
We first decide the propriety of the refusal to change custody from the Howells to Dyer.
The parties are in disagreement over what rule of law is applicable to disposition of the custody question. Dyer contends that the usual rule applicable in custody disputes between parents, I.e., that the welfare of the child is of paramount concern, is inapplicable here where he, as the surviving natural parent, is seeking a change of custody from those not occupying parental status. The rule here, Dyer says, citing Judd v. Van Horn, 195 Va. 988, 81 S.E.2d 432 (1954), is that he, as the natural parent, is entitled to custody unless it is proved that he is unfit, the law presuming that the best interests of the child will be served by placing her in his custody. The burden was upon the Howells, Dyer argues, to prove his unfitness; they failed to carry that burden and he should have been awarded immediate custody of Kathy.
The Howells, on the other hand, contend, citing Forbes v. Haney, 204 Va. 712, 133 S.E.2d 533 (1963), that the proper rule is that the welfare of the child is the paramount consideration and that where such welfare would best be served by denying custody to the parent, the technical rights of the latter may be disregarded. The Howells argue that it was shown, and the trial court found, that Kathy's best interests would be served by permitting her to remain in their custody. This being so, the Howells say, it was proper to deny Dyer's petition for change of custody.
We need not stop to resolve what appears to be a conflict between the rule set forth in Judd v. Van Horn, Supra, and that set forth in Forbes v. Haney, Supra. 1 There is a legal factor in this case which makes the Judd rule inapplicable in any event and requires that our decision be controlled by the Forbes rule. That factor is that the order of the Juvenile Court of November 10, 1967, formally divested Dyer of custody of Kathy and awarded her custody to the Howells. For Dyer to be entitled to a later change of custody, the burden was upon him to show that circumstances had so changed that it would be in Kathy's best interests to transfer her custody to him. Thus, the rule of decision in this case is that the welfare of the child is the paramount consideration.
At trial, Dyer did show that his circumstances had changed from the time the Juvenile Court divested him of Kathy's custody. He had attended college...
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...rights. See e.g. Grant v. Martin, 757 So.2d 264 (Miss. 2000); Denise v. Tencer, 46 Va. App. 372, 617 S.E.2d 413 (2005); Dyer v. Howell, 212 Va. 453, 184 S.E.2d 789 (1971); Thus, the nonparent third party seeking initial custody bears the burden of proof. Generally, the best interest of the ......
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Tracie F. v. Francisco D.
...rights. See e.g. Grant v. Martin, 757 So.2d 264 (Miss.2000) ; Denise v. Tencer, 46 Va.App. 372, 617 S.E.2d 413 (2005) ; Dyer v. Howell, 212 Va. 453, 184 S.E.2d 789 (1971) ; Thus, the nonparent third party seeking initial custody bears the burden of proof. Generally, the best interest of the......
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Denise v. Tencer, Record No. 1833-04-4.
...of the children would be promoted by granting custody to the grandmother." Id. Relying on its earlier decision in Dyer v. Howell, 212 Va. 453, 184 S.E.2d 789 (1971), the Supreme Court held that the trial court ascribed and employed the wrong burden of proof. McEntire, 217 Va. at 315, 227 S.......
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Winfield v. Urquhart
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