COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Agee and Senior Judge Coleman 

Argued at Salem, Virginia 

BUFFIE SUE CARTER 

 OPINION BY 

v. Record No. 1946-00-3 JUDGE G. STEVEN AGEE 

 MAY 15, 2001 

JUSTIN GRAY CARTER 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 Peter J. Schwartz (Walter F. Green, IV, on 

brief), for appellant. 

 Roger B. Willetts (Catherine A. McGuire; 

Edmunds, Willetts & Frank, P.C., on brief), 

for appellee. 

 In 1996, Buffie Sue Carter (the appellant) married Justin 

Carter (the father). Subsequently, the father adopted the 

appellant's five-year-old son, whom he had helped raise since 

birth. The appellant and the father also have a biological 

daughter. 

 In 1998, the parties separated. In a child custody order of 

December 21, 1999, the Augusta County Juvenile and Domestic 

Relations District Court awarded custody of both children to the 

father, finding such custody award to be in the best interests of 

the children. The appellant appealed this order to the circuit 

court. On August 1, 2000, the Augusta County Circuit Court 

awarded custody of both children to the father. The appellant 

appeals that decision to this Court. 
 The appellant does not contest the custody order as it 

applies to the couple's daughter. She argues that the trial 

court erred concerning her son's custody by not applying a 

presumption of custody in her favor as the biological parent over 

the father, the son's adoptive parent.1 We disagree because such 

a presumption does not exist under Virginia law. 

 Pursuant to Code § 63.1-219.22, previously codified at Code 

§ 63.1-233, any child adopted shall "be, to all intents and 

purposes, the child of the person so adopting him [or her], and 

. . . shall be entitled to all the rights and privileges, . . . 

of a child of such a person born in lawful wedlock." 

Accordingly, when an order of adoption becomes final, the 

adoptive parent obtains all the legal rights and obligations of a 

natural parent. See Frye v. Spotte, 4 Va. App. 530, 533, 359 

S.E.2d 315, 317 (1987). The adoptive parent, in a stepparent 

adoption, becomes a joint guardian of the minor child along with 

the birth parent and is equally and jointly charged with the 

child's care, nurture, welfare, education and support. Once the 

 

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1

 The appellant presented the issue on appeal as follows: 

"Did the Trial Court err in ruling that there is no presumption 

in favor of a natural parent over [a] non-natural parent in a 

custody case?" This question as presented, however, is 

misleading and our opinion focuses solely on the facts presented 

in this case, which involve a custody determination between a 

child's biological parent and adoptive parent. 
adoption is final, there is no distinction in law between the 

biological parent and the adoptive parent; they are parents to 

that child of equal rank and responsibility. The appellant and 

the father were, therefore, equally entitled to consideration as 

the custodial parent of their son. 

 Despite Code § 63.1-219.22, the appellant argues that the 

Commonwealth, as a matter of law, has a presumption in favor of 

the biological parent. She cites Bailes v. Sours, 231 Va. 96, 

340 S.E.2d 824 (1986); Walker v. Brooks, 203 Va. 417, 124 S.E.2d 

195 (1962); and Judd v. Van Horn, 195 Va. 988, 81 S.E.2d 432 

(1954), in support of this proposition. Upon a review of these 

cases, we find that the Supreme Court of Virginia has adopted a 

presumption favoring a natural parent over a third party in a 

custody case where the third party is not an adoptive parent. 

However, this presumption is not applicable to the matter at bar 

because the father is not a third party but, rather, is a parent 

with all the rights and duties to the child as if that child had 

been born to him. 

 Our decision, while of first impression in the Commonwealth, 

is compatible with the case law of other jurisdictions. For 

instance, in Ivey v. Ivey, 445 S.E.2d 258 (Ga. 1994), the father 

appealed the custody order giving custody of the couple's two 

children to their mother, "especially [pertaining to] the oldest 

child," pointing out that he was the biological parent of both 

children while the mother was the oldest child's adoptive parent. 

The father argued that in a custody battle between a biological 

parent and an adoptive parent, there should be a rebuttable 

presumption that custody should be awarded to the biological 

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parent. 

 The Supreme Court of Georgia rejected this argument: 

"A decree of adoption creates the 

relationship of parent and child between 

[the adoptive parent] and the adopted 

individual, as if the adopted individual 

were a child of biological issue of the 

[adoptive parent]." Thus, an adoptive 

parent stands on the same footing and has 

the same rights and obligations as a 

biological parent. It follows that in a 

custody dispute between a biological parent 

and an adoptive parent preference cannot be 

given to the biological parent. The test in 

a custody case of that kind is the same as 

in any child custody case, i.e., what is in 

the best interest of the child. 

Id. at 260. See also Commonwealth ex rel. Michael R. v. Robert 

R. R., 437 A.2d 969, 972 (Pa. Super. Ct. 1981) ("A decree of 

adoption directs 'that the person proposed to be adopted shall 

have all the rights of a child and heir of the adopting parent 

. . . and shall be subject to the duties of a child to him 

. . . .' For the purposes of determining custody, therefore, 

[son] is as much the father's son as he is the mother's."). 

 Accordingly we uphold the trial court's decision not to 

apply a presumption in favor of the biological parent. The 

decision of the trial court, which was based on the best 

interests of the child pursuant to Code § 20-124.3, is affirmed. 

 Affirmed. 

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