McEntire v. Redfearn, 751350

• Decision Date: 02 September 1976
• Docket Number: No. 751350,751350
• Citation: 227 S.E.2d 741,217 Va. 313
• Court: Virginia Supreme Court
• Parties: Berlina McENTIRE v. John C. REDFEARN et al. Record

Page 741

227 S.E.2d 741

217 Va. 313

Berlina McENTIRE v. John C. REDFEARN et al.

Record No. 751350.

Supreme Court of Virginia.

Sept. 2, 1976.

Gerald William Talley, Arlington, for appellant.

Christian C. Westerman, Alexandria, for appellees.

Before HANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

This is a dispute between a natural father and a material grandmother over the custody of two children.

On January 10, 1975, the father, appellee John C. Redfearn, filed a petition in the Alexandria Juvenile and Domestic Relations District Court seeking custody of two children born in 1968 and 1969, respectively, to Lizzie McEntire, the unmarried daughter of appellant Berlina McEntire. The father's request was opposed by the maternal grandmother, with whom the children were residing.

The juvenile court, by order of February 6, 1975, awarded custody to the father. On appeal by the grandmother to the circuit court, the trial judge, following a hearing and after observing the children would be 'well cared for' by either of the contesting parties, ruled the grandmother had the burden of proving by clear and convincing evidence that the father was unfit and that the best interests of the children would be promoted by granting custody to the grandmother. The court decided such burden had not been carried, therefore custody was again awarded to the father. We granted the grandmother an appeal from the final order entered by the circuit court on July 16, 1975.

The facts are not in substantial dispute. The mother and the two children resided with the grandmother in Alexandria until the mother was killed in 1971. The father, who lived elsewhere, had failed to support the children until he was required to pay $10 per week per child by a court order entered shortly before the mother death's. After the mother died the children continued to reside with and to be cared for by the grandmother, who was about 40 years of age and who had terminated her regular employment to be able to care for the children.

In a custody proceeding during August 1971 the Alexandria juvenile court ordered, after a hearing on the merits at which the father was present, that custody of the two children 'be assumed by the Court and (that they be) temporarily placed with (the grandmother).' No appeal was taken by the father from that action of juvenile court.

The children continued to reside with the grandmother until the February 1975 juvenile court order was entered. The evidence is unclear whether during the period between 1971 and 1975 the father made regular support payments. During this period, however, according to the evidence, the grandmother received $217 per month in Social Security payments on behalf of the children as the result of the mother's death. The father married in November 1974 and thereafter instituted these proceedings. When asked during the circuit court hearing why he failed to seek the children's custody at some prior time, the father testified that until he married he had no one to care for the children.

The question on appeal is whether the wrong rule of law was applied in the circuit court. The grandmother, relying principally on Dyer v. Howell, 212 Va. 453, 184 S.E.2d 789 (1971), argues that the burden of proof in this case was not upon her to show the father unfit but rather the burden was on the father to show that the best interests of the children would be served by a transfer of custody to him. The children's duly appointed guardian Ad litem, who appears here on behalf of the father, relies, as did the trial judge, on Rocka v. Roanoke County Department of Public Welfare, 215 Va. 515, 211 S.E.2d 76 (1975), and Hammack v. Wise, --- W.Va. ---, 211 S.E.2d 118 (1975), and contends the trial court properly placed the burden upon the grandmother to snow unfitness of the natural father. We disagree. Dyer controls, so we reverse.

Dyer also dealt with a custody dispute between a parent and non-parent. There, too, the parties disagreed over the placement of the burden of proof on the custody question. The natural father, citing Judd v. Van Horn, 195 Va. 988, 81 S.E.2d 432 (1954), argued that he was entitled to custody of his daughter unless he was proved unfit, relying on the presumption that the best interests of the child would be served by placing her in his custody. The non-parents in Dyer, relying on Forbes v. Haney, 204 Va. 712, 133 S.E.2d 533 (1963), argued that the proper rule to be applied was that the welfare of the child was the paramount consideration, and that the father's technical rights may be disregarded if such welfare would best be served by denying custody to the parent. A legal factor existed in Dyer which made the Judd rule (followed in Rocka) inapplicable. In Dyer, more than two years before the father's petition for custody had been filed, the juvenile court had formally divested the parent of custody and awarded custody to the non-parents. There we said:

'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.' 212 Va. at 456, 184 S.E.2d at 792.

A legal factor...