COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Mc Clanahan and Senior Judge Coleman Argued at Salem, Virginia

JULIA LONG AND TONY LONG MEMORANDUM OPINION * BY v. Record No. 1434-03-3 JUDGE SAM W. COLEMAN III MAY 25, 2004 JUDITH HOLT-TILLMAN

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Mila m, Jr., Judge Carol B. Gravitt (Grav itt & Gravitt, P. C., on brief), for appellants. Robert J. Smitherman (Janine M. Jacob; Dani el, Vaughan, Medley & Smitherman, P.C, on brief), for appellee. Lee H. Turpin, Guardian ad litem for the minor child.

This appeal involves a child custody disput e between the child’s natural parents and her maternal grandmother. Th e trial court awarded sole physical cu stody of the four-year-old child to the grandmother, Judith Holt-Tillman, and join t legal custody to Tillman and Julia Long, the biological mother. In doing so, th e court found that the parents ha d voluntarily relinquished custody of the child to the grandmother. Julia and Tony Long appeal the relinquishment finding and the custody ruling. The Lo ngs also contend the trial court erred by refusing to admit evidence of past incidents concerning Tillman’s parenting ski lls. We affirm the tr ial court’s decision.
BACKGROUND Julia and Tony Long are the parents of K.L., who was born in August 1999. The Longs have two other daughters, ages se ven and two. The Longs have be en married since June 2002, but

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - have had an ongoing relationship fo r more than seven years. Judith Holt-Tillman is Julia’s mother and the grandmother of K.L. Immediately after the birth of K.L., Julia and K.L. resided for several mo nths with Tony in North Carolina. In November 19 99, Julia and K.L. moved into he r mother’s home because Julia planned to attend nursing school in order to improve her earning po tential. She planned to “get back together” with Tony after completing the nursing program. When Julia and K.L. moved in with Tillman, the Longs’ oldest daughter continued to reside with Tony’s pare nts in North Carolina. The youngest daughter was not yet born. After Julia returned to T illman’s home in 1999, K.L. has continuously resided there. Tillman testified that, after Julia first returned home, Julia primarily took care of K.L. However, Tillman stated that, over time, Julia’s reliance on Tillman for K.L.’s care increased to the point that Tillman was the child’s primary caregiv er. Tillman testified sh e performed all of the housekeeping chores and cooking du ring the time Julia liv ed with her. Whil e Julia resided with Tillman, the two had numerous disa greements over when and where Julia could take K.L. Julia testified that Tillman refused to allow her to take K.L. to North Caro lina to visit the child’s father. According to Julia, she and her mo ther always had “a very rocky relationship.” Julia testified that Tillman has never liked or approved of Tony an d has always made disparaging remarks about him and his family. In March 2000, Julia obtained an order from the Danville Juvenile and Domestic Relations District Court (JDR court) awarding her sole custod y of K.L. with liberal vi sitation to Tony. Julia stated that she sought the order because she thought it would make “things better” while she resided with Tillman. Tony did not oppose the order. However, after entry of the order, Julia and Tillman continued to have disagreements concerning K.L., particularly regarding Tony’s visitation with the child. Tony testified that he was often denied visi tation with K.L. when he attempted to visit her.- 3 - During the spring of 2000, Ju lia and Tillman had several disagreements concerning the care of K.L., resulting in Julia ’s periodic absences fr om the hom e, leaving K.L. in the sole care of Tillman. According to Ju lia, during one of these absences Tillma n refused to let he r visit K.L. for a period of time. Sometime after May 20 00, Julia and Tony resumed living together. When they went to Tillman’s home to get K.L. in order that she could live with them, Tillman re fused to let them take K.L. Afterward, Tillman filed a complaint agains t Julia and Tony with Ch ild Protective Services (CPS). At the suggestion of a so cial services worker, Julia and Tony agreed to allow K.L. to remain with Tillman pending the investiga tion of the complaint. During the CPS investigation, Julia agreed to sign a consent order which awarded joint legal custody of K.L. to Julia and Tillman but awarded sole physical custody of K.L. to Tillman. The order further provided that Julia would have visitation with K.L. one day per week for six hour s and additional visitations as the parties agreed. Julia testified that she feared if she went to cour t she “wouldn’t get [K.L.].” The consent order was entered on July 27, 2000. Julia complied with the visitatio n conditions, although th ey made it di fficult for Tony to visit K.L. In addition, Julia testified she gave Till man her WIC (Women, Infant s and Children) welfare checks to assist in paying for K.L.’s care. As to Tillman’s explanation of how the parties agreed to the joint custody arrangement, she testified that Julia had wanted to give Tillman sole custody of K.L. and that it was Tillman’s idea that they have joint custody. T illman denied that she established an y limitations on Ju lia’s visitation rights, and she stated that the visitation arrangement initiall y worked well. For the fifteen months from July 2000 to November 2001, K.L. lived with Tillman and Julia visited the child one day per week. Tillman test ified that in early 2001 , she needed financial assistance to pay K.L.’s expenses, but, other than the WIC checks, Julia had only occasionally- 4 - provided diapers for K.L. and Tony had provided no financial support. Julia testified that she paid Tillman for some expenses for K.L.’s care. In November 2001, Tillman filed a support pe tition in the JD R court and the court ordered the parents to pay Tillman child su pport. On November 8, 2001, the Longs file d in the JDR court a motion to amend the July 27, 2000 consent order, requesting full custody of K.L. In response, on February 11, 2002, Tillman filed in the JDR court a mo tion to amend the consent order, also requesting full custody of K.L. On July 11, 2002, the JDR court issued a temporary order, ruling that custody was to remain with Tillman pending a home study on Tillman. The court continued the matter until October 18, 2002 for a final hearing. By order dated October 18, 2002, the JDR court awarded “full custody” of K.L. to Tillman with visitation to the Longs. Julia appeal ed that decision to the circuit court. At the February 2003 circuit cour t custody hearing, K.L.’s guardian ad litem commended the Longs for the improvements they had made in their lives and ga ve her opinion that the Longs were able to provide an appropriate home for K.L. However, she also opined that in the absence of the parental presumption, the child ’s best interests wo uld be served by re maining in Tillman’s custody. The evidence showed that in the past the Long s have had financial difficulties. But, at the time of the hearing, Tony had work ed for the same employer for four years, he is considered “an excellent” worker and had been prom oted to foreman over one year ago. Julia has worked in the same convenience store for one y ear, and her employer considers her a reliable and hard worker. Julia testified that the couple is current on paying bills . They had been resi ding for approximately one year in a rented home in which they have desi gnated a bedroom for K.L. The family has health, medical, dental, and prescr iption coverage through Tony’s employment.- 5 - In an opinion letter dated April 23, 2003, the trial court awarded joint legal custody of K.L. to Julia and Tillman, subject to the parents havi ng expanded visitation rights, and sole physical custody of K.L. to Tillman. Th e trial court held that “clear, co gent and convincing evidence” established that the Longs had voluntarily relinquishe d custody of K.L. to T illman. The court found that the immediate transfer of phys ical custody to the Longs at that time would not be in K.L.’s best interests because K.L. enjoyed a st rong relationship and a stable liv ing environment with Tillman. In addition, the child had known no home other than that provided by her grandmother. The court described its ruling as a “transitional custody arrang ement,” allowing K.L. to acclimate to life with her parents, yet preserving for her a stable living environment. The trial court stated that it would revisit custody in the summer of 2004. The Longs appeal the tr ial court’s custody ruling.
ANALYSIS Admission of Evidence During the custody hearing, th e Longs proffered evidence of specific instances of Tillman’s child-rearing techniques that had occurred during Julia’s childhood, whic h evidence the Longs contend was relevant to prove that Tillman possessed and exhibited po or parenting skills. The trial court refused to admit the evidence, ruling that it was remote and was irrelevant to the issue of Tillman’s present ab ility to rear K.L. Evidence ordinarily is admiss ible if it “is both material--tending to prove a matter that is properly at issue in the case--a nd relevant--tending to establish the propos ition for which it is offered.” Johnson v. Commonwealth , 2 Va. App. 598, 601, 347 S.E.2d 163, 16 5 (1986). Evidence concerning incidents in Julia’s ch ildhood with her mother did not te nd to prove whether it was in the best interests of K.L. to remain in Tillman’s ph ysical custody--the matter at issue in the case. Ample and sufficient evid ence of Tillman’s parenting of K.L. since her birth had more evidentiary- 6 - value in proving whether Tillman was capable of parenting and rendered th e proffered evidence of little or no evidentiary valu e. The proffered evidence of Tillman’ s parenting of Julia did not tend to establish that Tillman was unsuitable to raise K.L. Accord ingly, the trial court did not abuse its discretion in refusi ng to admit it. Custody “[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests reco gnized by [the United States Supreme] Court.” Troxel v. Granville , 530 U.S. 57, 65 (2000). “In all child custody cases, including those between a parent and nonparent, ‘the best interests of the child are para mount and form the lodestar fo r the guidance of the court in determining the dispute.’” Bailes v. Sours , 231 Va. 96, 99, 340 S.E.2d 824, 826 (1986) (quoting Walker v. Brooks , 203 Va. 417, 421, 124 S.E. 2d 195, 198 (1962)). “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 cu stody or visitation to any other person with a legitimate interest.” Code § 20-124.2(B). In custody disputes between a natural parent and a nonparent, the law presumes the best interest of the child will be served when th e child is in the custody of the natu ral parent. Bailes , 231 Va. at 100, 340 S.E.2d at 827. When applying the parental pres umption, “the rights of the [natural] parents may not be lightly severed but are to be respect ed if at all consonant w ith the best interest of the child.” Wilkerson v. Wilkerson , 214 Va. 395, 39 7, 200 S.E.2d 58 1, 583 (1973). To overcome the strong presum ption favoring a parent, the nonparent must adduce by clear and convincing evidence that: (1) the parents are unfit; (2) a court previously has granted an order of divestiture; (3) the parents voluntar ily relinquished custody; (4) the parents abandoned the ch ild; or (5) special facts and circumstances constitute extraordinary reasons to take the child from the parents. Mason v. Moon , 9 Va. App. 217, 220, 385 S.E.2d 242, 244 (1989).- 7 - “Because the trial court heard the evidence at an ore tenus hearing, its decision ‘is entitled to great weight and will not be dist urbed unless plainly wron g or without evidence to support it.’” Piatt v. Piatt , 27 Va. App. 426, 432, 499 S.E.2d 567, 570 (19 98) (citation omitted). Tillman contends that the Longs are not entitl ed to the parental presumption because they voluntarily relinquished custody of K. L. to her and that, without th e parental presumption, K.L.’s best interest would be served by remaining with her. The Longs contend that because Julia always retained joint legal cust ody of K.L., and periodically lived in the home with K.L. and Tillman, and at all other times visited K.L. and maintained a clos e relationship with her, no voluntary relinquishment of the custody of K. L. occurred. Thus, they conten d the trial court was required to apply the parental presumption. The trial court held that Tillman had rebut ted the parental presumption by proving that Julia voluntarily relinquished her right to custody of K.L. to Tillman. The court found that Julia participated “only intermittently ” in K.L.’s early upbringing, a nd she voluntarily left “the primary responsibility” for K.L.’s care with Tillman. In additi on, the trial court found that Tony “willingly played a limited role in [K.L.]’s early upbringing and vol untarily acquiesced to [K.L.]’s placement in [Tillman]’s custody.” The trial court found that Julia and Tony offered “no appreciable financial support” for the child until the JDR court ordered them to do so. On these findings the court ruled that clear and convincing evidence proved the Longs had voluntarily relinquished custody of K.L. to Tillman. The dispositive issue is whether the consen t order granting physical custody of K.L. to Tillman was a voluntary relinquishment of custody of K.L. by Julia to Tillman, thereby rebutting the presumption favoring custody by a parent over a nonparent. We hold that the consent order was a vol untary relinquishment of physical custody by Julia of K.L. and, thus, the parental presumption doe s not apply to this case. Therefore, Julia had- 8 - the burden to prove that circum stances had so changed since th e voluntary relinquishment that return of K.L. to her parents would be in the child’s best interests. The Supreme Court’s decision a nd reasoning in Watson v. Shepard , 217 Va. 538, 544-45, 229 S.E.2d 897, 901 (1976), controls our decision here. Watson involved a custody dispute between a natural mother and paternal relatives who were seeking to adopt the child. In Watson , the mother had executed a notarized statement which stated, “‘I give my consent for [the Shepards] to have custody of [my] daughter . . . .’” The mother, who was separated from the child’s father, gave custody of the child to th e Shepards because she felt she was financially unable to take care of the child and she believed her daughter was “‘better off’” with the Shepards until she “‘could get [her]self straightened out.’” Id. at 539-40, 229 S.E.2d at 898. Based on the mother’s having relinquished custody of her child until she could care for the child, the JDR court entered an order granting the Shepards custody. Several years later, the mother petitioned th e trial court for custody of her daughter. The trial court denied the change of cu stody petition, and the mother appealed. 1 The Supreme Court ruled that the JDR court order giving custody of the child to the Shepards was not merely pro forma . . . but it was based upon [the mother’s] voluntary relinquishment of cust ody, as evidenced by a written statement executed by [the mother], upon results of a thorough investigation, and upon a heari ng by a court of competent jurisdiction . . . . Consequentl y, the mother’s parental custody rights were altered and for her to be entitled to a later change in custody, the burden was upon her to show the circumstances had so changed since entry of the fore going order that it would be in [the child]’s best interests to tr ansfer custody to her; the burden was not upon the Shepards, as the mother argues, to show parental unfitness. Id. at 545, 229 S.E.2d at 901.

1 The Watson case also involved an appeal of an interlocutory adoption order, but that issue is not germane to this case.- 9 - Here, Julia agreed in the consent order to voluntarily relinquish physical custody of K.L. to Tillman while retaining joint legal custody. As in the Watson case, the relinquishment was on a temporary basis until the parents could make the changes in their lives that might enable them to resume custody. “A voluntary relinquishment occurs when a parent willingly agrees or consents to having their child placed in the custody of a nonparent.” Mason , 9 Va. App. at 222, 385 S.E.2d at 245. The JDR custody order granting Tillman sole physical custody of K.L., even though ultimately a consent order, was not “merely pro forma ,” but was an adjudication on the merits by the court in a proceeding where both parties were contesting custody. The JDR court decision was based upon evidence presented at a custody hearing and from a CPS investigation. Moreover, the JDR court order we nt beyond merely preserving the status quo . Cf. Wilkerson , 214 Va. at 397, 200 S.E.2d at 583 (finding agreed order had “neither the dignity nor the effect of a final order of custody upon the merits” where, upon parents’ agreement, JDR court ordered continuing temporary custody of chil d with nonparent to maintain the status quo during pendency of the parents’ divorce proceeding). This case is distinguisha ble from Ferris v. Underwood , 3 Va. App. 25, 348 S.E.2d 18 (1986), upon which the Longs rely. First, Ferris dealt with whether the court’s order constituted an order of divestiture where there had been only an agreed order and no adjudication by the court, and here we decide whether as a matter of fact the parent had voluntarily relinquished custody of the child to a nonparent. In Ferris , we held that where an “agreed temporary custody order” had been entered without an adjudication awarding custody to a grandparent “such order ha[d] ‘neither the dignity nor the effect of a fi nal order of custody upon the merits’ [and] . . . the parental presumption is applicable.” Id. at 28, 348 S.E.2d at 20. However, the JDR court custody order aw arding custody of K.L. to Tillman was a determination by a court of competent jurisdiction of the custody question on its merits base d upon then-existing facts. . . .- 10 - Consequently, [Julia] . . . , when [s]he instituted the present proceeding, was not clothed with the parental presumption generally accorded natural parent s in a dispute with non-parents, because h[er] parental custody ri ghts were altered by the [JDR court] order. [T]herefore, . . . in this proceeding the welfare of [K.L.] is the paramount consid eration, and . . . the burden was upon [Julia] to prove that circumst ances had so changed since the [JDR court] order that it would be in [K.L.] ’s best interests to transfer custody to h[er and Tony]. McEntire v. Redfearn , 217 Va. 313, 315-16, 227 S.E.2d 741, 743 (1976). After ruling that the parental presumption di d not apply, the trial court found that the Longs had not proven that an “i mmediate transfer” of physical custody would serve K.L.’s best interests “at this time,” noting that the four-year-old child ha d known no other home than the one provided by Tillman. The trial court also found th at K.L. enjoyed a “strong relationship and a stable living environment” with her grandmother. Thus, the trial court found that K.L.’s best interests would be served by adopting a “transit ional custody arrangement, a middle ground” that acclimates K.L. to life with her natural parents while preserving a stable living environment. Accordingly, the court held that Tillman and Ju lia would share legal cu stody and Tillman would retain physical custody of K.L. until further review of the case in the summer of 2004. We find that the trial court did not abuse its discretion by not return ing K.L. to the Longs at the time. The evidence shows that the cust ody arrangement was considered by the parties and by the trial court as temporary cust ody, with return of the child to the mother or both parents if and when they demonstrated that they are suitable and responsible parents. Indeed, deficiencies in the Longs’ ability to parent the child existe d when K.L. was first born and the parents were unmarried and were starting th eir lives together as young adults. The Longs experienced financial difficulties in the past, but they appear to be in the process of establishing a stable living situation. They are both employed and ha ve received positive assessments from their employers. The Longs rent a home where they reside with their youngest daughter and have- 11 - visitation with their oldest daught er, K.L.’s biological siblings. The home study revealed that the youngest daughter is “thriving and appears to be on target in gr owth and development” while residing with the Longs. The home study did not re veal “evidence to suspect that [the Longs] are incapable of providing a safe and secure home for [K.L.].” The Longs have always had a role in K.L.’s life and are most certainlynot strangers in her life. Although each dispute concerning custody and visitation presents unique circumstances . . . the trial court’s judgment in every case is guided by a single, unvarying standard that the welfare of the child is the primary, paramount, and controlling consid eration of the court. All other matters are subor dinate. The trial court’s decision whether it was to the best inte rest of [K.L.] was within its discretion and is reversible onl y upon a showing that the court abused its discretion. Brown v. Burch , 30 Va. App. 670, 689, 519 S.E.2d 403, 412 (1999) (citation omitted). It appears that the Longs are devoted to K.L. and are making concerted efforts to stabilize their family life and to be able to give K.L. proper care. Although they have taken steps toward this end, the trial court found that the evidence failed to show that K.L.’s best interests would be served at the time by a return of custody to them . Under the court’s ruli ng Julia continues to share joint legal custody of K.L. with Tillman, m eaning she will have “joint responsibility for the care and control of [K.L.] and joint authority to make decisions concerning [K.L.].” Code § 20-124.1 (defining joint custody). The trial cour t did not abuse its discretion in refusing to return physical custody to the Longs at the time. Accordingly, we affirm the judgment of the trial court. Affirmed.