James v. James
| Decision Date | 06 September 1985 |
| Docket Number | No. 821301,821301 |
| Citation | 230 Va. 51,334 S.E.2d 551 |
| Parties | Debra Stack JAMES v. Bervil Garth JAMES, Jr. Record |
| Court | Virginia Supreme Court |
Howard I. Legum, Virginia Beach (Fine, Fine, Legum & Fine, Virginia Beach, on brief), for appellant.
Jon P. Eichler, Norfolk (Robinson, Eichler, Zaleski & Mason, Norfolk, on brief), for appellee.
Present: All the Justices.
The principal issue framed on this appeal is whether the chancellor erred in awarding custody of the minor children of a divorced couple to the children's grandparents.
Bervil Garth James, Jr., and his wife, Debra Stack James, are the parents of two children, one born February 17, 1976, and the other November 9, 1977. In litigation initiated by Bervil in 1980, each party sought a divorce on grounds of desertion and adultery, and each asked for custody of the children. In testimony before a commissioner in chancery, Bervil admitted committing adultery, but never when the children were in the house. He stated that Debra had told him that she had been sleeping with another man. Debra denied that this relationship was meretricious. Each party described various acts of physical violence committed by the other. Friends and relatives of the husband and wife testified that each was a fit and proper parent. A probation officer reported that "both parents seem to have a genuine good strong parental relationship" and that he found nothing "detrimental in either environment that might harm the children or impair their physical or psychological development." Both parties submitted evidence of their income and expenses.
The commissioner recommended that Debra be granted a divorce on the ground of adultery but found that she was not entitled to spousal support. On the question of custody, he failed to find either parent unfit. He noted, however, that "the parents are constantly at odds with each other" and "what concerns [me] most is the open hostility that the parties have exhibited toward each other--both in and out of the presence of their children." Although he "admit[ted] that this type of recommendation is unusual", the commissioner suggested that custody of the minor children be awarded to the paternal grandparents four days a week and to the maternal grandmother three days a week, and that Bervil be required to pay $350 per month in child support.
Over exceptions filed by both parents, the chancellor entered a decree confirming the commissioner's report. On appeal, Debra urges us to reverse the custody ruling and to enter final judgment granting her sole custody of both children and increasing the awards of child support and attorney's fees. Bervil, who specifically excepted to the custody ruling at trial, now asks us to affirm the decree in full or, alternatively, to "remand this case for determination by the trial court as to where the best interests of the children now lie". Counsel stipulated at bar that both parties have remarried and that the issue of spousal support is moot.
Debra seems to urge us to hold that the law favors a natural parent in any custody dispute with a third party. It is true that parents are the statutory guardians of their minor children, Code § 31-1, and "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 v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198 (1962). And, in Judd v. Van Horn, 195 Va. 988, 995-96, 81 S.E.2d 432, 436 (1954), we said that "a fit parent with a suitable home has a right to the custody of his child superior to the rights of others", that "the law presumes that the child's best interests will be served when in the custody of its parent", and that to overcome that presumption, "evidence of unfitness must be cogent and convincing."
But, as our language in Walker and Judd illustrates, we do not give wooden application to the rule Debra urges. Parental rights are not plenary or absolute. "[I]n custody and adoption cases the welfare of the child is of paramount concern and takes precedence over the rights of...
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