Balancing Parent's Rights 
V.
The Best Interest Of Children

CUSTODY DETERMINATIONS BETWEEN
BIOLOGICAL PARENTS AND OTHERS
by
Frank West Morrison & Ronald R. Tweel

I. INTRODUCTION

In the last several years, there have been numerous cases of national notoriety involving custody determinations between biological parents and others. The purpose of this lecture is to discuss these nationally known cases, to analyze the probable results of the non-Virginia cases, if tried, according to past and present Virginia law and to discuss the probable effect that Virginia Statute §20-124.1 through §20-124.6 will have in future custody litigation between parents and non-parents.

II. DISCUSSION OF FIVE NATIONALLY KNOWN CASES

A. Kingsley v. Kingsley 623 So.2d 780 (Fla. Dist. Ct. App. 1993). This case gained national notoriety when Gregory Kingsley, age 12, the subject of the custody dispute, filed a petition seeking a "divorce" from his natural parents. Gregory had spent seven months in his mother's care during the last eight years of his life prior to trial and had spent part of his earlier childhood living with his father, Ralph, who had been separated from his mother most of the child's life. Gregory's mother, Rachel, largely due to financial problems had been unable to provide for Gregory and her two younger children during most of Gregory's life prior to the custody hearing in this case, and on numerous occasions had turned Gregory over to the Florida Department of Health & Rehabilitative Services for foster care. Much of Gregory's life had been spent in various foster care placements.

During the various periods of foster care, Rachel did not fulfill all of the requirements of the various contracts which she signed with the Department of Health & Rehabilitative Services. In addition, Steve, Rachel's boyfriend with whom she was residing, had a criminal record. Gregory became extremely close to George Russ, an attorney, and Elizabeth Russ, his wife, who had been his foster parents for about two years and asked them if they would adopt him. The Russes filed an adoption petition to adopt Gregory, and Gregory's father, Ralph, consented to said adoption, but the same was opposed by Rachel. The Department of Health & Rehabilitative Services also filed a petition to terminate the natural parents' rights. Additionally, as noted earlier, Gregory hired his own attorney who filed a petition on his behalf seeking to divorce his natural parents, who at that time were themselves involved in divorce proceedings.

The trial court tried the termination of parental rights and the adoption proceedings simultaneously and ruled that the natural mother's parental rights should be terminated and that Gregory should be adopted by George and Elizabeth Russ. The Court of Appeals ruled (1) that while the child lacked legal capacity to institute a proceeding to terminate his parental rights in order to free himself for adoption by his foster parents, the lower court's ruling was harmless error because his foster parents, his guardian ad litem, and the State had also filed termination petitions on his behalf, (2) that the trial court erred in trying the termination and adoption proceedings simultaneously but that such error was harmless error and (3) that the mother's immediate appeal of the order terminating her parental rights deprived the lower court of the authority to enter an order granting the adoption and, thus, remanded the lower court's adoption order. However, George and Elizabeth Russ retained custody of Gregory pending the appeals.

B. DeBoer v. Schmidt (in re Baby Girl Jessica Clausen) 442 Mich. 648, 502, N.W. 2d 649 (1993). Cara Clausen (now Schmidt) gave birth to Jessica Clausen on February 8, 1991, in the State of Iowa. Cara was unmarried at the time of said birth and turned Jessica over to a lawyer representing Jan and Roberta DeBoer of Ann Arbor, Michigan, two days' later (less than the mandatory 72 hour waiting period required by Iowa law) and began the process of surrendering her parental rights. As a part of that process, she named as the father, a man she was then engaged to, who surrendered his parental rights, but Cara at the time knew he was not the natural father of Jessica. Within a few days after consenting to the adoption of Jessica, Cara changed her mind.

In late February of 1991, Cara told Dan Schmidt about his paternity of Jessica, and he filed a petition asserting his parental right and expressing his opposition to the adoption within about one month after Jessica's birth. Cara and Dan Schmidt married in April of 1992.

The Iowa trial and appellate courts ruled that the natural father's rights had not been terminated in accordance with the law in that there was no showing that the natural parent was unfit, even though there were allegations that he had abandoned two children previously born of other women prior to the birth of Jessica. The holdings of the Iowa courts made it clear that the courts are not free to take children from parents simply by deciding another home offers more advantages. Throughout the appellate process, however, until the later part of 1992, the Iowa court allowed Jessica to remain in the home of the DeBoers.

After their unsuccessful attempts to obtain legal custody of and adopt Jessica in Iowa, the DeBoers filed a petition on December 3, 1992, in a Michigan court asking for custody of Jessica for what was in the child's "best interest." On the same day Iowa District Court Judge Paul J. Kilberg entered an order of contempt against the DeBoers for not appearing at the scheduled hearing on that day in Iowa and in not turning Jessica over to the Schmidts as ordered.

The parties went through various trial and appellate level courts in Michigan and on July 2, 1993, the Michigan Supreme Court entered an order requiring the DeBoers to comply with the decision of the Iowa courts that the Schmidts be granted the custody of Jessica and directed the DeBoers to deliver her to the natural parents in Iowa. On July 26, 1993, Justice Stephens of the United States Supreme Court entered an order denying a stay of the Michigan Supreme Court's decision and on July 30, 1993, the Supreme Court denied applications for the stay with Justice Blackman and Justice O'Conner dissenting. 509 U.S. _____, 125 S.E.2d 755, Ill. St. Ct. _____ (1993).

Justice Stephens' opinion stated that the DeBoer's claim that Jessica's best interest will be served by allowing them to retain custody of her was based, in part, on the relationship that they had been able to develop with the child after it became clear that they were not entitled to adopt her. He stated that neither Iowa law, Michigan law, nor Federal law, authorized unrelated persons to retain custody of a child whose natural parents have not been found to be unfit simply because they are better able to provide for her future and her education.

C. Kimberly Mays Circuit Court, Wilchula, Florida, 1993 WL330624. Kimberly Mays who was age 14 at the time of the custody litigation was, due to unexplained circumstances, switched at birth with another child at the hospital. Her biological parents, Ernest and Regina Twigg, had seven other children and in 1988 discovered that one of their children, who had just died of a heart defect, was not their biological daughter and later determined that Kimberly, their biological daughter, had somehow been switched at the hospital with this deceased child.

After discovering that Kimberly was their biological daughter, they filed for custody against Bob Mays, who had raised Kimberly since 1978. In 1989 Bob Mays agreed for the Twiggs to have visitation rights to Kimberly, and the visitations went well at first, but problems developed after the fifth visit when Kimberly developed school problems, after which Mays cut off visitation with the Twiggs. Due to these problems, the Twiggs filed a petition seeking for increased visitation and/or custody and as a result of this decision, Kimberly went into an emotional tailspin. Kimberly desired to sever all ties with the Twiggs and wanted to "divorce" her biological parents. At the trial in this case, the Twiggs' lawyer stressed the couple's "God-given visitation rights."

The court ruled that Kimberly would be allowed to end all contacts with her biological parents and that Bob Mays was her "psychological father" but the court refused to grant Kimberly a divorce from her biological parents. It should be noted that according to the national news some months after the court's decision, Kimberly and Bob Mays developed a parent-teen conflict and Kimberly was temporarily living with her biological parents at the time of the news release and more recently has made claims of sexual abuse against Bob Mays.

D. In Re Adoption of Doe (also known as the Baby Richard case) No. 76063 (Ill. Jun. 16, 1994 and Jul. 12, 1994). John and Jane Doe filed a petition on March 20, 1991, to adopt a 4-day old baby boy named Richard. Richard's biological parents, who were both Czechoslovakian emigres, were not married. Richard's mother, Daniella Janikova, did not tell his father, Otakar Kirchner, that she had placed their child for adoption. She also did not tell him when and where Richard was born. Instead, she told Otakar that Richard died shortly after birth. Otakar and Daniella had planned to marry until she abruptly cut off their relationship by unexpectedly moving out of their apartment in her eighth month of pregnancy. Otakar did not discover that his child was alive and had been put up for adoption until Richard was 57 days old. Otakar thereafter opposed the adoption on the basis that he did not consent. He then married Daniella. The adoption case proceeded to trial, and the court found that Otakar was an unfit person to have a child because he had failed to demonstrate a "reasonable degree of interest, concern or responsibility" for Richard within thirty days after the child's birth as required by the adoption act. Holding that Otakar's consent for adoption of Richard was not required, the trial court entered a judgment of adoption.

On appeal to the first appellate court, the ruling of the trial court was upheld but the Supreme Court of Illinois reversed the trial court's decision finding that the father's consent to the adoption was required. The Illinois Supreme Court reasoned that the father could not be said to have failed to show sufficient interest since the mother blocked his efforts to find the child and that the adoptive parents did not try to locate the father even though the mother had told them that she knew his identity. The court held, under such circumstances, the father had no opportunity to discharge any familial duty.

The court emphasized that the best interest of the child was not an appropriate consideration unless a parent had been shown to be unfit stating "if best interest of the child were a sufficient qualification to determine child custody, anyone with superior income, intelligence, education, etc., might challenge and deprive the parents of their right to their own children." The Illinois Supreme Court denied petitions to rehear the case (In re Doe 76063 (Ill. Jul. 12, 1994) and in expanding on its position that the child's best interest should not be considered if a parent is not unfit stated: "persons seeking babies to adopt might profitably frequent grocery stores and snatch babies from carts when the parent is looking the other way. Then, if custody proceedings can be delayed long enough, they can assert that they have a nicer home, a superior education, a better job or whatever, and that the best interest of the child are with the babysnatchers. The children of parents living in public housing or other conditions deemed less affluent and children with single parents might be considered particularly fair game."

E. Bottoms v. Bottoms 18 Va. App. S-70 (1994). Sharon Bottoms, age 23, the natural mother of Tyler Bottoms, who was a part-time cashier at Winn Dixie, and her lover, April Wade, age 27, who was a manager of a deli, met in 1992 and at the time of the custody hearing, were currently living in a homosexual relationship. The maternal grandmother, Kay Bottoms, filed for custody of Tyler in March of 1993 and was awarded custody to Tyler by the juvenile court in May of 1993 and the decision of the juvenile court was appealed to the Henrico Circuit Court. The Henrico Circuit Court ruled that Sharon Bottoms was unfit and "immoral" due to her admission of engaging in oral sex with April Wade and awarded custody to the maternal grandmother. The court further awarded Sharon Bottoms visitation at a "friend's" house, out of the presence of Wade, holding that the minor child should have no contact with Wade, who the child called Da-Da.

The Court of Appeals, however, ruled that the evidence was insufficient to support the trial court's decision to remove the custody from his natural parent and awarded custody back to the child's mother. The court stated:

"In this case, the evidence fails to prove that Sharon Bottoms, the child's mother, abused or neglected her son, that her lesbian relationship with April Wade has or will have a deleterious effect on her son or that she is an unfit parent. To the contrary, the evidence showed that Sharon Bottoms is and has been a fit and nurturing parent who has adequately provided and cared for her son. No evidence tended to prove that the child will be harmed by remaining with his mother. We hold, therefore, that the trial court abused its discretion by invoking the state's authority in taking the child from the custody of his natural mother, Sharon Bottoms, by transferring custody to a non-parent, Kay Bottoms, the child's maternal grandmother."

It should be noted in this case that the trial court's ruling granting custody to Kay Bottoms was not based on the fifth factor as set forth in the case of Bailes v. Sours, infra, discussed below, but rather, was based on a finding of unfitness of the natural mother based on her lesbian relationship.

III. ANALYSIS UNDER VIRGINIA LAW

The question arises as to how these out-of-state cases would have been decided in Virginia prior to July 1, 1994, and whether the recent enactment of the new custody statute, Section 20-124.1 through §20-124.6 with an effective date of July 1, 1994, would probably have affected any such decisions or the decision in the Bottoms case under Virginia law prior to July 1, 1994.

A. Analysis Prior to Statutory Change

1. Virginia Case Law Prior to Statutory Change

a. Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986). This is the leading Virginia case involving biological parents and third parties. In this case, the evidence showed that the mother was a stranger to her son and that the child preferred to stay with his stepmother, with whom he had lived for a number of years prior to the death of his father, and that the change of custody to the mother would be harmful. The court, in awarding custody to the stepmother, stated that the presumption favoring the parent over the non-parent had been overcome. The court stated that the presumption may be overcome by clear and convincing evidence of: (1) unfitness, (2) previous order of divestiture, (3) voluntary relinquishment, (4) abandonment, and (5) finding of special facts and circumstances constituting an extraordinary reason for taking the child from the parent. The court held under the facts of this case that the fifth factor had been shown by clear and convincing evidence.

b. Schultz v. Caso and Caso v. Schultz VLW, 093-8-253 (1993). In applying the rationale set forth in the Bailes v. Sours case, Judge Designate Carlton Penn of the 20th Judicial Circuit of Virginia in this case awarded custody to Joseph Ralph Caso, the husband of the natural mother of the child in question but not the child's biological father. Caso had believed that he was the biological father of the child born during the marriage of the parties, had been told by the mother that he was the biological father, and had treated the child as his child under the belief that he was the child's father for a period of almost six years from the time of the minor child's birth until he learned shortly before the custody hearing for the first time based on DNA testing that he was not the biological father of the child. The court found that he was the fifth factor listed in the Bailes case, had been proved by clear and convincing evidence, and that Caso should be awarded the child's custody. The court stated that:

"Caso is her father; she has known no other. Schultz referred to Caso as such until this litigation was instituted. Despite its falsity, she named him as Jenna's father on the birth certificate. He has been a father to her in every sense, except biologically. He has been her primary caretaker, whether Schultz was at her employment or not, despite her hours of work."

The court relied heavily on the testimony and/or evaluations of the three health care providers in determining that Jenna's custody should go to Caso, particularly the finding of Dr. Matthews, who was of the opinion that to remove her from Caso's custody would be "devastating" to her.

c. Walker v. Fagg, 11 Va. App. 581, 400 S.E.2d 208 (1991). The court based its decision on the presumption in favor of the natural parent and granted custody to the father of the children where the father had killed the wife and mother of the children but due to his rehabilitation was still awarded their custody.

d. Elder v. Evans, 16 Va. App. 60 (1993). The court of Appeals reversed the decision of the trial court which had awarded custody of Katherine Franzy born in 1982 to Addie B. Evans, a friend of the mother, who had physical custody of the child since 1986. The Court of Appeals granted custody to the father noting that the record showed that the father was a caring and loving parent, that his family life was an appropriate place for the child, and that the child showed an ability to adapt to her father's current family. The Court of Appeals reasoned that the record contained no showing of unfitness of the father nor contained any special facts or circumstances that would constitute an extraordinary reason to deny the father custody of the child.

2. Out-of-State Cases Analyzed Under Virginia Case Law

Under the case law that existed prior to July 1, 1994, it is our opinion that the Virginia courts (1) under the facts of the Kingsley case would have awarded custody of Gregory to the Russes, the non-biological parents, on the basis of unfitness or unsuitability of the natural mother or based on the fifth factor set forth in the Bailes case, (2) would have awarded the custody of Kimberly Mays to Bob Mays, the non-biological parent on the basis of the fifth factor set forth in the Bailes case, (3) would have allowed the natural father in the In Re Doe case to intervene and prevent the adoption and (4) although it is almost too close to call, we believe, would have ruled in favor of the natural parents in the DeBoer v. Schmidt case. It should also be noted that we do not believe the Virginia courts would entertain actions on behalf of children to "divorce" their parents, although we do believe the courts would entertain petitions filed on behalf of children by their guardian ad litem and/or by their next friend to determine their custody and in termination proceedings, the courts would allow children to set forth their positions through pleadings filed by their guardians ad litem and/or next friend. Of course, it should also be noted that there will probably be many cases where a court would grant custody to a non-parent but would, nevertheless, refuse to terminate the parental rights of the parents or allow said children to be adopted by the non-parents.

B. Analysis After Recent Statutory Change

1. Virginia Statutory Law Change

The new Virginia statute, Section 20-124.1 through Section 20-124.6 provides in Section 20-124.2 that "the court shall give due regard to the primacy of the parent/child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest." To prove by clear and convincing evidence that the best interest of a child will be served by awarding custody of said child to a non-parent will be and, in our opinion, should be a heavy burden of proof to meet, but this burden in most cases will not be as heavy nor, in our opinion, should it be as heavy as the burden of having to show by clear and convincing evidence that special facts and circumstances exist constituting an extraordinary reason for taking the child from the parent as set forth in the fifth factor of the Bailes case.

2. Out-of-State Cases Analyzed Under New Virginia Statute

a. DeBoer v. Schmidt. In analyzing the DeBoer v. Schmidt case under the new statute, we believe that the DeBoers would have met the burden of showing by clear and convincing evidence that the best interest of Baby Jessica would have been to remain in their custody. We do not believe, however, they would have been able to meet the burden of showing "unfitness" or "unsuitability" or in proving "special facts and circumstances constituting an extraordinary reason for taking the child from the natural parent" since the natural father had filed for custody in that case approximately one month after the birth of the child and the DeBoers' relationship with Baby Jessica was based mainly on the time that they had to bond with her while the case was in litigation. While we do believe that in facts similar to the DeBoer v. Schmidt case, the non-parents would prevail in a custody dispute under the new statute, we do not believe that non-parents would be awarded custody simply because they were better able to provide for a child's future and education which was the concern of Justice Stephens in the DeBoer v. Schmidt case, nor will the new Virginia statutory standard create a situation where "anyone with superior income, intelligence, education, etc., might challenge and deprive the parents of their right to their own children" which was the concern expressed by the Illinois Supreme Court in the In Re Doe case.

The reason that we believe that the DeBoers would prevail under the Virginia statute is based on the fact that the Schmidts, while they were not shown to be unfit or unsuitable by clear and convincing evidence, were shown from the evidence to have various problems in their character, to be lacking in parental skills and to be unable to provide an appropriate caring and loving environment for Baby Jessica. It is also important that the relationship between Baby Jessica and the DeBoers started after the mother consented to the adoption and, as part of the process, fraudulently had the man to whom she was engaged surrender his parental rights, when at the time she knew that Dan Schmidt was, in fact, the natural father. This is not a case where a person seeking custody frequented grocery stores and snatched babies from the carts when the parents were looking the other way as stated by the Illinois Supreme Court in the In Re Doe case.

We do not believe, however, under Virginia law that the parental rights of the Schmidts would or should be terminated nor do we believe that the DeBoers would or should be allowed to adopt Baby Jessica. To the extent that visitation rights would be in Baby Jessica's best interest, they would and should be granted to the Schmidts and, of course, should the Schmidts rehabilitate themselves and there be a material and substantial change of circumstance such that it would be in Baby Jessica's best interest to be in their custody, then custody could be transferred to them in the future. However, as stated above, we believe under the circumstances as existed at the time of trial, that the best interest of Jessica was shown by clear and convincing evidence to be in the custody of the DeBoers.

b. Other Out-of-State Cases

(1) Kingsley v. Kingsley - We believe the same result would have been reached since the non-parent would have been able to prove by clear and convincing evidence that the best interest of the child would be served by the non-parent's custody of the child.

(2) Kimberly Mays cases - We believe the same result would have been reached since the non-biological parent would have been able to prove by clear and convincing evidence that the best interest of Kimberly would be served by the non-biological parent having her custody.

(3) In re Adoption of Doe - We believe the same result would have been reached as nothing in the new statute would provide any grounds for terminating the biological parents' rights in allowing the child to be adopted without his consent.

3. Virginia Cases Revisited

a. Evans v. Elder - In analyzing this case under the new statute, We believe that the evidence at trial would have been sufficient under the new statute to sustain the trial court's granting of custody to the non-parent on appeal had the standard at that time been clear and convincing evidence that the best interest of the child would be served thereby, as provided in the new Virginia statute.

As discussed earlier in this article, the child had lived with Addie Evans for a period of five years. The trial court found that the child was well adjusted in the custody of Mrs. Evans and that a strong parental bond had been established between Mrs. Evans and the subject child. The trial court also found that petitioner, Guy Elder, initially and for a substantial period of time denied paternity, accepted no parental responsibility and had been and continues to be dilatory in his duty to support the aforesaid child. Although Mrs. Evans at trial mistakenly believed that the natural father was not entitled to a parental custody presumption, based on a previous custody order between the natural mother and the natural father, we believe that the evidence introduced at trial, while not constituting an extraordinary reason to deny the father custody of the child, did show by clear and convincing evidence that the best interest of the child would be served by Addie Evans having the child's custody. Our opinion is not based on any superior income, intelligence, education, etc., of the non-parent but rather on the adjustment and bonding of the child with the non-parent over a period of years during which the father was not contesting the child's custody.

b. Bottoms v. Bottoms - We believe the results would have been the same since the lower court's decision was based on unfitness which was overturned by the Court of Appeals, and we do not believe the non-parent would be able to show that the child's best interest would be served by awarding custody to her, especially under the clear and convincing burden of proof.

c. Schultz v. Caso and Caso v. Schultz we believe would have the same result since the burden of proof on the non-biological parent who prevailed would be less than the burden of proof under the Bailes v. Sours test that existed at the time of the trial.

d. Walker v. Fagg - This case would be too close to call under the new statute and more facts would have to be developed to determine the outcome of this case were it to be turned under the new statute.

IV. DOCTRINE OF EQUITABLE ESTOPPEL IN CASES BETWEEN PARENTS AND THIRD PARTIES

(to be completed)

V. CONCLUSION

In conclusion, the new Virginia statute appears to provide a less difficult burden for the non-biological parent to be awarded custody than existed under previous Virginia case law. We believe that this statutory change is a good one in balancing the best interest of the child against the rights of parents. The statute still makes clear the primacy of the parent/child relationship and only in cases where the best interest of the child is shown by clear and convincing evidence will the non-parent be awarded custody. We do not believe under the new statute that baby snatchers will be awarded custody of children nor will children be awarded to third parties simply because they have superior income, intelligence, education, etc. Rather, we believe that non-parents will only be awarded custody under the new statute where they are able to prove one or more of the factors set forth in the Bailes case by clear and convincing evidence or in situations where the natural parents, while not technically being unfit or unsuitable, are very close to being so and/or where third parties have had minor children live with them for substantial periods of time and have established close parental-type bonds with such children.

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