COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

THOMAS BOYCE, ET AL. 

v. Record No. 2044-96-3 

BRIAN SAMUEL BUSH MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

CYNTHIA BOYCE BUSH APRIL 29, 1997 

v. Record No. 2045-96-3 

BRIAN SAMUEL BUSH 

FROM THE CIRCUIT COURT OF LEE COUNTY 

 William C. Fugate, Judge 

 Charles L. Bledsoe (Bledsoe & McAfee, P.C., 

on briefs), for appellants. 

 Terry G. Kilgore (Kilgore & Baker, on brief), 

for appellee. 

 This is a child custody dispute between the child's natural 

mother and grandparents and the child's former stepfather. The 

sole issue presented is whether the trial court erred in finding 

that the child's best interests would best be served by awarding 

temporary custody to her former stepfather. Finding no error, we 

affirm. 

 "On review, '[a] trial court is presumed to have thoroughly 

weighed all the evidence, considered the statutory requirements, 

and made its determination based on the child's best interests.'" 

Logan v. Fairfax County, 13 Va. App. 123, 128, 409 S.E.2d 460, 

 

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

designated for publication. 
 2 

463 (1991) (quoting Farley v. Farley, 9 Va. App. 326, 329, 387 

S.E.2d 794, 795 (1990)). "[T]he evidence is viewed in the light 

most favorable to the prevailing party below and its evidence is 

afforded all reasonable inferences fairly deducible therefrom." 

Id. In matters concerning the welfare of a child, "trial courts 

are vested with broad discretion in making the decisions 

necessary to guard and to foster a child's best interests." 

Farley, 9 Va. App. at 328, 387 S.E.2d at 795. When based on 

evidence heard ore tenus, the trial court's judgment will not be 

disturbed on appeal unless plainly wrong or without evidence to 

support it. Id. at 328, 387 S.E.2d at 795-96. 

 Cynthia Boyce Bush (mother) and Brian Samuel Bush 

(step-father) were married on September 16, 1994. At the time of 

the marriage, mother was sixteen and stepfather was twenty-three. 

 Prior to the marriage, mother gave birth to Demi Shontey Boyce 

(Shontey) whose natural father's identity was unknown. Mother 

left the marital residence in February 1995, and took the child 

with her. The evidence established that she left Shontey with 

her father, Thomas Boyce (Thomas), and stepmother, Esther Boyce 

(Esther), and moved in with a friend. For a period of 

approximately three to four months, from mid-April through July 

1995, while Shontey was in the care of Thomas, mother visited the 

child only four times for a total of ten to fifteen minutes. 

Mother voluntarily relinquished custody of Shontey to Thomas in 
 3 

 

July 1995, and left the area.1

 

 1Mother also petitioned the juvenile and domestic relations 

district court to place Shontey in Thomas' custody. The court 

granted this request, and awarded temporary custody to Thomas and 

visitation to stepfather. 

 Following the parties' separation, on June 21, 1995 stepfather petitioned for custody of Shontey. The Department of 

Social Services (DSS) conducted a court ordered home study that 

indicated that stepfather "appears to be a very levelheaded and 

responsible young man" who is "able and capable of providing care 

for his stepdaughter . . . ." Also, in June 1995, DSS conducted 

a home study of Thomas and Esther's home and concluded that 

"Esther and Thomas Boyce are capable of providing appropriate 

care and an environment for the child." 

 In August 1995, DSS attempted to do a home study of mother. 

 The social worker was unable to complete the study because she 

was unable to locate mother, who had moved to North Carolina in 

July 1995. The social worker stated that "[t]his agency also 

feels that Ms. Bush's life style displays her inability to care 

and provide for the subject child." The social worker concluded 

that, 

 [b]ased on the information provided by Ms. 

Bush, it is this worker's impression that she 

is not capable of providing the adequate care 

and supervision that the subject child will 

need and require at this time. It also 

appears that Ms. Bush has several areas of 

her own life that she needs to address and 

improve before she can even attempt to 

effectively parent the subject child. 

 In August 1995, mother was diagnosed with cancer, and 

underwent an emergency hysterectomy. She did not return to 
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Thomas' home until March or April 1996. The parties were 

divorced by order dated nunc pro tunc May 8, 1996. 

 The trial court conducted an ore tenus hearing on July 11, 

1996, and awarded custody of Shontey to stepfather. No 

transcript of that hearing is provided. However, the parties 

agree that the court's order and the attached home studies supply 

sufficient evidence for review. The court made the following 

relevant findings in an order dated August 6, 1996: 

 That both parties, Cynthia Boyce Bush, 

the natural mother, and Brian Samuel Bush, 

the stepfather, are fit and proper parents, 

capable of caring for the minor child, Demi 

Shontey Boyce. 

* * * * * * * 

 That a homestudy on Brian Samuel Bush 

 . . . was performed at the request of the 

Court and determined to be a suitable 

environment for the child. 

* * * * * * * 

 That as a result of her illness, there 

are times when Cynthia Boyce Bush needs 

assistance with the care of her infant child 

. . . , and it is provided by her father and 

stepmother . . . . 

 That a homestudy on the Thomas and 

Esther Boyce household, the maternal 

grandfather and stepgrandmother of Demi 

Shontey Boyce was performed at the request of 

the Court and determined to be a suitable 

environment for the child. 

* * * * * * * 

 The Court, after consideration of the 

factors contained in Virginia Code Section 

20-124.3 as it relates to the best interest 

of the child, finds that the best interests 

of the child, by clear and convincing 
 5 

evidence would be served by granting 

temporary custody of the child, in accordance 

with [the court's findings], Demi Shontey 

Boyce to Brian Bush, the former stepparent 

 . . . . 

 "In a custody dispute between a parent and a non-parent, 

'the law presumes that the child's best interests will be served 

when in the custody of its parent.'" Bottoms v. Bottoms, 249 Va. 

410, 413, 457 S.E.2d 102, 104 (1995) (quoting Judd v. Van Horn, 

195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)). "In all child 

custody cases, including those between a parent and a non-parent, 

'the best interests of the child are paramount and form the 

lodestar for 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)). 

 In order to overcome the presumption 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 voluntarily relinquished 

custody; (4) the parents abandoned the child; 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). "Once the presumption favoring 

parental custody has been rebutted, the parental and non-parental 

parties stand equally before the court, with no presumption in 

favor of either, and the question is the determination of the 
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best interests of the child according to the preponderance of the 

evidence." Walker v. Fagg, 11 Va. App. 581, 586, 400 S.E.2d 208, 

211 (1991). 

 "Abandonment of a child without justification establishes 

parental unfitness. When abandonment exists in a custody dispute 

between a parent and another, the general rule becomes operative 

and the child's welfare is the dominant and controlling factor." 

Patrick v. Byerly, 228 Va. 691, 694-95, 325 S.E.2d 99, 101 

(1985). "A voluntary relinquishment [of custody] 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. 

 Because the stepfather prevailed at trial, we must view the 

evidence and all the reasonable inferences flowing therefrom in 

the light most favorable to him. In so doing, the evidence 

established that the mother voluntarily relinquished custody of 

Shontey to a third party, her father. This action rebutted the 

statutory presumption of parental preference, and the general 

rule that the child's welfare controls becomes operative. 

Sufficient evidence supports the trial court's finding that 

"after consideration of the factors in Virginia Code Section 20-

124.3 as it relates to the best interests of the child, . . . the 

best interests of the child, by clear and convincing evidence 

would be served by granting temporary custody . . . to the former 

stepparent." We conclude that the evidence supports this 
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finding. 

 Affirmed.