COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

JANIE STRONG NICKLAUS 

v. Record No. 0076-95-2 MEMORANDUM OPINION*

 PER CURIAM 

DAVID STRONG OCTOBER 31, 1995 

AND 

VIRGINIA STRONG 

FROM THE CIRCUIT COURT OF LOUISA COUNTY 

F. Ward Harkrader, Jr., Judge 

 (John R. Maus, on briefs), for appellant. 

 (Stephen C. Harris, on brief), for appellees. 

 Janie Strong Nicklaus appeals the decision of the circuit 

court awarding custody of Nicklaus's infant daughter to David 

Strong. Nicklaus asserts that the trial court erred in finding 

that she was an unfit mother, that she had voluntarily 

relinquished custody of the child, and that special facts and 

circumstances existed to warrant removing custody of the child 

from her as the natural parent. Upon reviewing the record and 

briefs of the parties, we conclude that this appeal is without 

merit. Accordingly, we summarily affirm the decision of the 

trial court. Rule 5A:27. 

 The record in this case is composed of the court's letter 

opinion and final order. Both documents set out the evidence 

upon which the trial court relied in reaching its decision to 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

award custody of the minor child to Strong. While blood tests 

indicated Strong was not the child's biological father, he was 

identified as the father on the child's birth certificate. "In 

matters concerning custody and visitation, the welfare and best 

interests of the child are the 'primary, paramount, and 

controlling consideration[s].'" Kogon v. Ulerick, 12 Va. App. 

595, 596, 405 S.E.2d 441, 442 (1991) (citation omitted). The 

trial court is vested with broad discretion to make the decisions 

necessary to safeguard and promote the child's best interests, 

and its decision will not be set aside unless plainly wrong or 

without evidence to support it. Farley v. Farley, 9 Va. App. 

326, 327-28, 387 S.E.2d 794, 795 (1990). 

 "Although the presumption favoring a parent over a 

non-parent is strong, it is rebutted when certain factors, such 

as parental unfitness, are established by clear and convincing 

evidence." Bottoms v. Bottoms, 249 Va. 410, 413, 457 S.E.2d 102, 

104 (1995). Other factors which may rebut the presumption 

favoring the biological parent include a previous order of 

divestiture, voluntary relinquishment, abandonment, or "a finding 

of 'special facts and circumstances . . . constituting an 

extraordinary reason for taking a child from its parent, or 

parents.'" Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d 824, 827 

(1986) (citation omitted). Code § 20-124.2(B) now provides that 

custody may be awarded to "any other person with a legitimate 

interest" if clear and convincing evidence shows the best 
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interests of the child so warrant. Clear and convincing evidence 

is the degree of proof "that will produce in the mind of the 

trier of facts a firm belief or conviction upon the allegations 

sought to be established." Bottoms, 249 Va. at 413, 457 S.E.2d 

at 104. The party seeking to change custody from the parent 

bears the burden to show unfitness. Id. 

 The trial court found by clear and convincing evidence that 

mother was unfit. Nicklaus abused the child when she was small. 

 Furthermore, the child's counselor believed, based upon evidence 

gathered in the months immediately prior to the court's hearing, 

that Nicklaus's current husband sexually and physically abused 

the child. Significantly, the counselor "could find no evidence 

that [Nicklaus] could or would protect the infant child from 

further abuse." In addition, both Nicklaus and her new husband 

failed to comply with previous court orders to obtain counseling. 

 Nicklaus's new husband began counseling only after ordered to do 

so by a Florida court following an incident of domestic abuse 

against Nicklaus. Even witnesses called on behalf of Nicklaus 

indicated that her home lacked peace and tranquility and that 

"loud voices and screaming . . . are normal fighting."1

 In 

contrast, the court found the family life offered by Strong was 

one of "security, stability, constancy, and love" based upon "a 

schedule that accommodates [the child's] needs appropriately." 

 

 1The court also noted that, when the child was one year old, 

Nicklaus had voluntarily relinquished physical custody of the 

child for a year to Connie Strong, Strong's sister-in-law. 
 4 

In addition, the court found that the fact that both the child 

and Strong believed he was her biological father constituted an 

extraordinary reason for taking the child from Nicklaus. The 

child viewed Strong and his wife as her parents and Strong "has 

always acted in that role in his own mind." 

 The trial court found that clear and convincing evidence 

established that it was in the best interests of the child to 

grant custody to Strong, with visitation to Nicklaus. We cannot 

say that the trial court's finding was plainly wrong or without 

evidence to support its finding that Nicklaus's abuse of the 

child, the volatile nature of the relationship with her current 

husband, her voluntary relinquishment of the child to Connie 

Strong, and the unique relationship formed by Strong and the 

child support the finding. Accordingly, the decision of the 

trial court is summarily affirmed. 

 Affirmed.