Tuesday 13th May, 2008.

Joseph C. Florio, Appellant, against Record No. 2424-06-1 Circuit Court Nos. CH02000025-01 through CH02000027-01 Barbara E. Clark, William B. Clark and Joyce Childers, Appellees.

Upon a Rehearing En Banc Before Chief Judg e Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan, Haley, Petty, Beales and Millette Kenneth B. Murov for appellant. Breckenridge Ingles (J ulianne B. Dias, Guardian ad litem for the minor child; Martin, Ingles & Ingles, Ltd.; Foard & Dias. P.C., on brief), for appellees.

By memorandum opinio n dated October 30, 2007 , a divided panel of this Court affirmed the judgment of the trial cour t. We stayed the mandate of th at decision and granted rehearing en banc . Upon rehearing en banc , it is ordered that the stay of this Court’ s October 30, 2007 mand ate is lifted and the judgment of the trial court is affirmed for the reasons stated in the majority me morandum opinion in Joseph C. Florio v. Barbara E. Clark, William B. Clark and Joyce Childers , No. 2424-06-1 (Va. Ct. App. Oct. 30, 2007), and we adopt that opinion as our own. Judge Humphreys would reverse the trial court for the reasons set forth in the dissenting opinion of the October 30, 2007 panel.-2- This order shall be certified to the trial court. A Copy,

Teste: Cynthia L. McCoy, Clerk

By: Deputy Clerk

# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 4th 

### day of December, 2007

.

Joseph C. Florio, Appellant, against Record No. 2424-06-1 Circuit Court Nos. CH02000025-01 through CH02000027-01 Barbara E. Clark, William B. Clark and Joyce Childers, Appellees.

Upon a Petition for Rehearing En Banc

Before the Full Court

On November 9, 2007 came the appellant, by couns el, and filed a petitio n requesting that the Court set aside the judgment rendered herein on October 30, 2007, and grant a rehearing en banc thereof. On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on October 30, 2007 is stayed pending the decision of the Court en banc , and the appeal is

reinstated on the docket of this Court. Notwithstanding the provisions of Rule 5A: 35, the following briefing schedule hereby is established: Appellant shall fi le an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee’s br ief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion pr eviously rendered by the-2- Court in this matter. It is further ordered that th e appellant shall file twelve additional copies of the appendix previously filed in this case.

A Copy,

Teste: Cynthia L. McCoy, Clerk By: Deputy ClerkCOURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Hu mphreys and Seni or Judge Willis Argued at Chesapeake, Virginia

JOSEPH C. FLORIO MEMORANDUM OPINION * BY v. Record No. 2424-06-1 JUDGE JERE M. H. WILLIS, JR. OCTOBER 30, 2007 BARBARA E. CLARK, WILLIAM B. CLARK AND JOYCE CHILDERS

FROM THE CIRCUIT COUR T OF GLOUCESTER COUNTY Von L. Piersall, Jr., Judge Designate Kenneth B. Murov for appellant. Breckenridge Ingles (J ulianne B. Dias, Guardian ad litem for the minor child; Martin, Ingles & Ingl es, Ltd.; Foard & Dias, P.C., on brief), for appellees.

Joseph C. Florio appeals the award of lega l and physical custody of his child to the child’s maternal aunt, Barbara E. Clark, and he r husband, William B. Clark. He contends the trial court (1) failed to give due regard to the pr imacy of his parental relationship with his child as required by Code § 20-124.2(B) a nd (2) erred in its custody dete rmination because the Clarks “did not sustain their burden to prove the existe nce of clear and convincin g evidence that the best interests of [the child] require d that legal and primary physical custody be awarded to” them. We affirm the judgment of the trial court.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Background On appeal, we view the evidence and all reas onable inferences in the light most favorable to the Clarks as the pa rties prevailing below. See McGuire v. McGuire , 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). In January 1996, Mary Childers gave birth to a child fathered by Florio. By the time the child was born, the unmarried parents had separated. On April 17, 1996, with the consent of both Mary Childers and Florio, the juvenile and domestic relations district court awarded sole physical custody of the child to Mary Childers. Later that year, Mary Childers moved in with her sister and brother-in-law, th e Clarks. Seven months later, she moved to her own residence a short distance away. In June 2001, she became ill and her mother, Joyce Childers, moved into her home to help her. When she was hospitalized in January 2002, she pla ced the child with the

Clarks. In March 2002, Mary Childers died. The Clar ks and Florio sought custody of the child. On October 6, 2004, the trial court issued a final order awarding custody to the Clarks and Joyce Childers. Florio appealed that ruling to this Court.

In Florio v. Clark , Record No. 2633-04-1, slip op. at 12-13 (Va. Ct. App. July 26, 2005) ( Florio I ), we held “that the trial court abused its discretion in excludi ng the updated home study and in excluding the social worker’s testimony rela ting to the statutory best -interests factors.” We reversed and remanded the case for a new custody hearing “[b]ecause these erroneous rulings sufficiently tainted the evidence before the tr ial court, especially as the excluded evidence pertained to the child’s be st interests . . . .” Id. , slip op. at 13. On remand, the trial court awarded custody of the child to the Clarks. This appeal

followed.- 3 - Analysis “In issues of child custody, ‘the court’s param ount concern is always the best interests of

the child.’” Vissicchio v. Vissicchio , 27 Va. App. 240, 246, 498 S.E.2d 425, 428 (1998) (quoting Farley v. Farley , 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990)). See Code § 20-124.2(B). “Because the trial co urt heard the evidence at an ore tenus hearing, its decision ‘is entitled to great weig ht and will not be disturbed unless plainly wrong or wit hout evidence to support it.’” Piatt v. Piatt , 27 Va. App. 426, 432, 499 S.E.2d 567, 570 (1998) (quoting Venable

v. Venable , 2 Va. App. 178, 186, 342 S.E.2d 646, 651 (1986)). “Absent clear evidence to the contrary in the record, the j udgment of a trial court comes to an appellate court with a presumption that the law was corre ctly applied to the facts.” Bottoms v. Bottoms , 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995). In determining the best interests of a child, the trial court must consider the statutory factors identified in Code § 20-124.3. “The cour t shall give due regard to the primacy of the parent-child relationship but ma y upon a showing by clear and convi ncing evidence that the best

interest of the child would be served thereby award custody or vi sitation to any other person with a legitimate interest. . . .” Code § 20-124.2(B). “‘In a custody dispute between a parent and non-parent, the law presumes that the child’s best interests will be served when in the custody of its parent.’” Bottoms , 249 Va. at 413, 457 S.E.2d at 104 (quoting Judd v. Van Horn , 195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)). “Although the presumption favoring a parent over a non-parent is a strong one, it is rebutted

when certain factors are establishe d by clear and convincing evidence.” Bailes v. Sours , 231 Va. 96, 100, 340 S.E.2d 824, 827 (1986) (footnote omitted). Those factors include: (1) parental unfitness, Forbes v. Haney , 204 Va. 712, 715-16, 133 S.E.2d 533, 535-36 (1963); (2) a previous order of divestiture, McEntire v. Redfearn , 217 Va. 313, 316, 227 S.E.2d 741, 743 (1976);- 4 - (3) voluntary relinquishment, Shortridge v. Deel , 224 Va. 589, 594, 299 S.E.2d 500, 503 (1983); (4) abandonment, Patrick v. Byerley , 228 Va. 691, 695, 325 S.E.2d 99, 101 (1985); and (5) special facts and circumstances, Wilkerson v. Wilkerson , 214 Va. 395, 397-98, 200 S.E.2d 581, 583 (1973). “Once the presumption favoring parental cu stody has been rebutted, the parental and non-parental parties stand equally before the cour t, with no presumption in favor of either, and the question is the determination of the best inte rests of the child accord ing to the preponderance

of the evidence.” Walker v. Fagg , 11 Va. App. 581, 586, 400 S.E.2d 208, 211 (1990). “The circumstances that might justify denying a parent cust ody of his or her child in favor of a non-parent will va ry from case to case.” Brown v. Burch , 30 Va. App. 670, 687, 519 S.E.2d 403, 411 (1999).

The trial court concluded that the Clarks had proved by clear and convincing evidence special facts and circumstances rebutting the presumption in favor of Florio’s custody and requiring placement of the child with them. The evidence supports this holding. Florio initially agreed that the child’s mother, Mary Childers, was properly and should be

the child’s custodian. In her wi ll, Mary Childers nominated her si ster, Mary Clark, as the child’s guardian and nominated her mother, Joyce Childers, as alternate guardian. While this was not a determining factor, it was a properly considered circumstance. By awarding custody of the child to the Clarks, the trial court complied with the directive of his mother, the person Florio had agreed was best suited to be in ch arge of his upbringing and welfare. Florio failed to document his employment or to verify the stability and dependability of

his income. He stated that he works with his father operating a kennel, but admitted he receives neither a paycheck nor a regular draw. He ha d filed no tax returns acknowledging his claimed income. Although he testified he was in the process of building his own re sidence, he currently- 5 - had no home and lived with his fa ther. During Mary Childers’ li fe, he did not support the child

and had limited contact with him. During his entire life, the child has enjoyed a close relationship with the Clarks and has resided with them for significant periods of tim e. When he was six months old, he and his mother moved in with the Clarks, who helped ca re for him. When he and his mother moved a short distance away to their ow n residence, the Clarks maintained close contact with him, vacationing together and seeing him two to three times a week. During this time, William Clark spent time with the child, helped him with his homework, and took him to soccer practice. When his mother became ill in June 2001, the child lived with Joyce Childers, and the Clarks assisted with his daily care. As Mary Childers’ cond ition worsened, the Clarks provided the child

additional care. He moved in with them for th e three months prior to his mother’s death. Following his mother’s death, he continued to li ve with the Clarks, except for a three-month period, during which he resided with Florio, who re fused to allow him contact with the Clarks or Joyce Childers. Prior to Mary Childers’ death, Florio had littl e contact with the child. He exercised his visitation infrequently. He pr ovided no support. He was not i nvolved in the child’s schooling, extracurricular activities, or general upbringi ng. Although his contact with the child increased after Mary Childers’ death, he rema ins only slightly involved in the child’s daily life. He has not

demonstrated that he can meet the child’s educat ional and emotional needs. While he lived with Florio, the child exhibited fati gue and his schoolwork suffered. The child has a settled position in the Clarks ’ household. He has frequent contact with his grandmother, Joyce Childers. The Clarks ha ve successfully addressed and served his special needs. He struggled during his early school years. The Clarks explored the reasons for this, and through medication, tutoring, and heavy involvement in the child’s schooling, have addressed- 6 - them. They work closely with the child and r outinely meet with his teachers. The child’s schoolwork and ability to con centrate have improved greatly. In every case concerning child custody and vi sitation, the tria l court’s judgment is guided by a single, unvarying standard. The welfare of the child is the primary, paramount, and controlling consideratio n. All other matters are subordinate. See Mullen v. Mullen , 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948). That determinati on lies within the tria l court’s discretion and is reversible only upon a showing that the court abused its discretion. See M.E.D. v. J.P.M. , 3 Va. App. 391, 398, 350 S.E.2d 215, 220 (1986). Having considered the totality of the circumstances present in this case, we hold that the

trial court did not err in fi nding clear and convincing evid ence of special and unique circumstances rebutting the presumption in favor of awarding custody to Florio and requiring denial of custody to him. We further hold that the trial court did not err in finding that the child’s best interests would be served by gran ting custody to the Clarks and in making that

award.

Affirmed.- 7 - Humphreys, J., dissenting. I respectfully dissent from the analysis and hol ding of the majority. In this case, the trial court improperly applied a “best interests of th e child” analysis in making a finding of “special

facts and circumstances.” Because I believe the evidence was insufficient as a matter of law for a finding of special facts and circumstances, I woul d reverse the judgment of the trial court, and remand the case for further proceedings consistent with this analysis. It is true that “[i]n all child custody ca ses, including those between a parent and non-parent, the best interests of a child are param ount and form the lodestar for the guidance of the court in determining the dispute.” Mason v. Moon , 9 Va. App. 217, 220, 385 S.E.2d 242, 244 (1989) (quoting Bailes v. Sours , 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986)). However, “in custody disputes between a natural parent and a non-parent, the law presumes the best interest of

the child will be served when in the custody of the natural parent.” Id. (emphasis added). To overcome the presumption favoring the pare nt, the nonparent must prove by clear and convincing evidence that: (1) the parents are unfit; (2) a court previously has granted an order of divestiture; (3) the pare nts voluntarily relinquished custody; (4) the parents abandoned the child; or (5) special facts and circumstances constitute extraordinary reasons to take the child from the parent, or parents. Bailes , 231 Va. at 100, 340 S.E.2d at 827. In th is case, the tria l court relied solely upon the last rationale to support its decision to award custody to the Clarks. “[C]ircumstances that might [constitute extr aordinary reasons to] de ny[] a parent custody

of his or her child in favor of a non- parent will vary from case to case.” Brown v. Burch , 30 Va. App. 670, 687, 519 S.E.2d 403, 411 (1999). Howeve r, some factors a court may consider

include 1) the age of the child when care was assumed by the non-parent; 2) the period of time elapsed be tween the parent’s loss of custody and his or her attempt to regain custody; 3) the intensity and genuineness of the parent’s desire to obtain custody of the child;- 8 - and 4) the stability and certaint y of the child’s future in the parent’s custody.

Id. A finding that the presumption has been rebutted does not, ipso facto , mean that custody goes to the nonparent. See Walker v. Fagg , 11 Va. App. 581, 585-86, 400 S.E.2d 208, 211 (1991). Indeed, “[o]nce the presumption favor ing parental custody ha s been rebutted, the parental and non-parental parties stand equally before the court, with no presumption in favor of either, and the question [only then becomes] the determination of the best interest of the child according to the preponderance of the evidence.” Id. at 586, 400 S.E.2d at 211. Thus, a trial court is first re quired to determine, as a thre shold question, whether or not the nonparent has overcome the presumption that the best interest s of the child are served by placing the child with the parent. If the trial court finds that the nonparent has not overcome this presumption, then the trial court need proceed no further and must award custody to the parent.

If the trial court finds that the nonparent has overcome the pr esumption, then the trial court must proceed to make a finding as to which party would better suit the best interests of the child, and award custody to that party. In this case, the trial court reversed the order in which th e requisite findings should have been made, stating in its analysis:

I’m concerned about the best interest of the child. I have considered the statute, especi ally the requirements of [Code § 20-124.3], 1 and also the other statutes that are applied and I’ve

1 Code § 20-124.3 provides: In determining best interests of a child for purposes of determining custody or visita tion arrangements including any pendente lite orders pursuant to § 20- 103, the court shall consider the following: 1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;- 9 - considered the facts and the law . . . [a]nd I think there are . . . special facts and circumstances in this case.

The trial court then listed the evidence it believed supporte d its finding of special facts and circumstances. Specifically, the trial court note d the fact that Florio did not originally have custody of the child, and had not participated mu ch in supporting the child when the child was

2. The age and physical and mental condition of each parent; 3. The relationship existing betw een each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurate ly assess and meet the emotional, intellectual and physical needs of the child; 4. The needs of the child, givi ng due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members; 5. The role that each parent has pl ayed and will play in the future, in the upbringing and care of the child; 6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child; 7. The relative willingness and demo nstrated ability of each parent to maintain a close and continui ng relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child; 8. The reasonable preference of th e child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference; 9. Any history of family abuse as that term is defined in § 16.1-228. If the court finds su ch a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the cour t deems necessary and proper to the determination. The judge shall communicate to the parties the basis of the decision either orally or in writing.- 10 - with his mother. The trial court also mentioned that Florio had not helped much with the child after Childers became ill. Instead, Childers and the child briefly moved in with the Clarks. Also important to the trial court’s decision was the fact that Childers had designated the Clarks as the child’s guardians in her will. The trial court also noted that Florio had been “less than forthright” in his answers to social workers investigating th e case, on his tax return statements, and in his testimony. Finally, the trial court stressed that the child had special needs, and Florio lacked the necessary income and health insurance to suitabl y address those needs. The trial court then awarded custody to the Clarks, because they had “proven for the last several years that they [could] be of great service to [the child,] [had] made arra ngements for [] counseling, for [] education . . . [and] done all the things that a mother and father would do.” For the following reasons, I believe the evidence is insufficient to overcome Virginia’s strong presumption in favor of the natural parent. In making its decision, the trial court improperly relied on several facts that are irrelevant as a matter of law to a finding of special circumstances. For example, the testamentary wishes of the child’s mother are of no legal significance in supplying “special circumstances” sufficient to overcome the presumption in favor of the father. 2 Similarly, the counseling services and other

2 Code § 31-2 states: Every parent may by his last will and testament appoint [] a guardian of the person of his minor child . . . but no guardian of the person of a minor other than a parent shall be entitled to the custody of the person of his ward so long as either parent survives and such surviving parent is a fi t and proper person to have the custody of the child.

See also Judd v. Van Horn , 195 Va. 988, 994-95, 81 S.E.2d 432, 435 (1954) (“[W]here the custody of children is granted to their mother . . . such custody . . . only establishes the right of custody between the two spouses du ring their lives, and upon the death of the mother her right does not descend nor can it be transmitted , but that right of the father to the custody of the children is revived, provided, of course, he is a person suitable for the custody of the children.” (quoting 128 A.L.R. 990) (emphasis added)).- 11 - arrangements made by the Clarks for the benefit of the child, while relevant to an analysis of who could provide for the best interests of the child, are of no moment in overcoming the presumption in favor of a natural parent. To hol d otherwise, as the majority does, effectively eliminates the two-step analysis required by Walker and substitutes a “bootstrap” rationale where the child’s best interest will necessarily supply the special circumstances sufficient to deprive a natural parent of the custody of his child. The remaining facts relied upo n by the trial court in finding the existence of “special circumstances” we re that Florio did not originally have custody of the child, that Florio lacked the necessary income and health insurance to suitably address the child’s special needs, and that Florio had been “l ess than forthright” to the investigating social

worker and the IRS. In my view, a parent’s income level and the availability of health insurance, while also relevant in a “best interests of the child” analys is, are not proper considerations in determining the existence of “special circumstances” sufficien t to warrant transfer of custody to a nonparent.

To hold otherwise would effectivel y deprive poor or less affluent parents of the benefit of the presumption that their children should remain in their custody. Moreover, while I certainly do not condone a lack of candor by a pa rent to social workers who ar e investigating issues relating to the custody of their children or the misrepresentation of one’s income to the IRS, such lack of candor in my view is insufficient standing alone to overcome the presumption in favor of a natural parent under the clear and convincing standard. Put more succinctly, based on my reading of th e record, it is clear to me that the trial court improperly conflated the issu es of the best interest of the child with whether the Clarks had overcome the presumption in favor of custody w ith Florio by clear and convincing evidence. This is not to say that both findings cannot be made based on the same evidence. However, the evidence presented by the Clarks, which was sp ecifically relied upon by the trial court, was- 12 - insufficient as a matter of law under a “clear and convincing” standard to overcome the presumption that custody of the child should be with his natural parent.

In Burch , we affirmed an award of custody to a nonparent upon a showing of “special and unique circumstances” sufficient to overcome th e parental presumption. In that case, Robert Burch married Virginia Brown in 1989 and became th e stepfather of Brown’ s three-year-old son. 30 Va. App. at 681-82, 519 S.E.2d at 409. During the marriage, Burch was the child’s primary caretaker. Brown developed an addiction to alcohol and drugs, and in January 1992, took the

child and moved in with another man. Burch fi led for custody in April 1992. The juvenile and domestic relations district court granted Burch custody of the ch ild on August 12, 1992, and Brown appealed to the circuit court. Id. at 682, 519 S.E.2d at 409. Brown took no further action on her app eal until November 1996, at which time she sought custody of her son. Id. By that time, the court found that she had “made an impressive, . . . positive turn in her life,” and “used major initiatives as a non cust odial parent to stay involved with this young man.” Id. at 682-83, 519 S.E.2d at 409 (omission in original). The court also found that Burch had cared for the child very well. Id. at 684, 519 S.E.2d at 410. Furthermore, Burch fostered the child’s relati onship with both Brown and the child’s natural father, and the child excelled in mu sic, athletics, and academics. Id. at 682-83, 519 S.E.2d at 409. In addition, the child wanted to remain with Burch, and the guardian ad litem recommended that joint custody be placed with Burch and the child’s natural father. Id. at 683,

519 S.E.2d at 409. On appeal we affirmed, finding the record sufficient to support the “special and unique circumstances” that justified the custody award. Specifically, we noted that the child “had continuously lived with Burch for six years at the time of the custody hearing, and has now been in Burch’s custody for more than seven years.” Id. at 688, 519 S.E.2d at 412. We also noted that- 13 - “[d]espite filing a timely appeal to the circ uit court in August 1992, Brown took no legal action to overturn the juvenile court’s or der for more than four years.” Id. Furthermore, we noted that the child would have been adversely affected if the circuit court transf erred custody to Brown.

Id. The Supreme Court of Virginia also found the existence of “special circumstances”

sufficient to warrant cu stody to a nonparent in Bailes . In that case, Jean Bailes and Wayne Sours married in 1971, had a son, Sean, in 1972, and divorced in 1975. 231 Va. at 97, 340 S.E.2d at 825. Although the divorce decree contained no provision concerning custody, the child lived with his father after the divorce. Wayne remarried in October 1975, and Jean in 1977. Id. Although Jean visited her son regularly for the firs t eleven months after the divorce, her visits diminished appreciably over the years, culminat ing in “only ‘eight or ten’ [visits] during a nine-year period.” Id. at 98, 340 S.E.2d at 825-26. Wayne died in 1983. Id. at 98, 340 S.E.2d at 825. After his death, Sean began to talk with hi s mother on the telephone a nd to reluctantly visit her home every other weekend. Id. at 98, 340 S.E.2d at 826. Jean then sought custody of her son, who did not wish to live with her. Instead, he wanted to stay with his stepmother, Elaine, with whom he had a close relationship. Id. at 97, 340 S.E.2d at 825. Although both Jean and Elaine we re found to be fit and prope r persons to have custody, psychological testimony indicated that moving S ean to Jean’s home would have an adverse impact on him. Id. at 99, 340 S.E.2d at 826. Jean nevertheless argued that because she was found to be a fit parent with a suitable home, sh e had a superior right to her son’s custody. The trial court agreed that a presumption in the la w favored Jean, but found that his stepmother had overcome the presumption “by clear, cogent and convincing evidence.” Id. On appeal, the Supreme Court affirmed the tr ial court in light of the fact that Sean’s

contact with Jean “has been so limited that it is fa ir to say she is ‘virtually a stranger’” to him.- 14 - Id. at 101, 340 S.E.2d at 827 (quoting Patrick v. Byerley , 228 Va. 691, 695, 325 S.E.2d 99, 101 (1985)). The Court further noted that “Elaine ha[d] nurtured Sean as her son from infancy to adolescence[,]” and was, to Sean, his “mother.” Id. On these facts, th e Court concluded that “the likelihood of inflicting serious harm to Sean is so clearly established by the evidence that the presumption favoring the mother is repugnant to the child’s best interest[,]” and affirmed the trial court’s award of custody to Elaine. Id. at 101, 340 S.E.2d at 827-28.

Unlike Burch and Bailes , the record here contains insu fficient evidence to support the finding that the Clarks overcame the presumption th at the child’s best inte rests would be served in the custody of his father. Indeed, both home studies performed on Florio indicate that Florio is a fit parent capable of providing his son a su itable home, clothing, and food, and also capable of meeting all of his son’s physical and emotiona l needs. Florio, like Brown, proved to be unfit in the child’s early years, but has made im pressive and positive ch anges in his own life amounting to a return to fitness. Unlike Brow n, however, Florio has maintained and developed a very close relationship with his son through c onsistent visitation and loving involvement. Furthermore, Florio sought custody of his son immediately upon the death of the child’s mother and has aggressively and diligently pursued custody of him in the courts for more than four years. In contrast to the children in both Burch and Bailes , Florio’s son desires to live with him,

and the home studies indicate that Florio is an appropriate and suitabl e custodian for his son, namely, that no harm would result from a change in custody. Thus, despite the Clarks’ assertion to the cont rary, Florio’s case is neither “very similar”

to the facts in Burch , nor those of Bailes

. Burch involved a mother who had shown no interest whatsoever in obtaining custody of her son for more than four years, and Bailes involved a

mother who had all but abandoned her son for more than a decade. In short, the evidence in- 15 - Florio’s case does not show by clear and c onvincing evidence that special facts and circumstances constitute extraordinary reas ons to take the child from Florio. The trial court improperly substituted a “best interests of the child” analysis for a finding of special facts and circumstances. The evidence adduced at trial may well have been sufficient to prove by the preponderance of the evidence that the best in terests of the child favored placement with the Clarks. However, I do not be lieve the evidence was sufficient to overcome the presumption favoring placement with the natura l parent by clear and convincing evidence. Accordingly, I would reverse and remand for furthe r proceedings consistent with this analysis.