COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Coleman 

Argued at Salem, Virginia 

WILLIAM A. KING and 

 MARGARET KING 

 MEMORANDUM OPINION* BY 

v. Record No. 2452-96-3 JUDGE SAM W. COLEMAN III 

 OCTOBER 7, 1997 

ALICE MICHELLE KING 

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY 

J. Samuel Johnston, Jr., Judge 

 George W. Nolley for appellants. 

 (Bryan K. Selz; Overbey, Hawkins & Selz, on 

brief), for appellee. 

 Appellants, William A. and Margaret King, appeal from the 

trial court's decree awarding custody of their three-year-old 

grandson to his natural mother, Alice Michelle King. They 

contend that the trial court erred by awarding custody of the 

child to the mother without prohibiting that the child have 

contact with Kenneth Gardner, the mother's romantic friend and 

the killer of the child's natural father. We hold that the trial 

court did not err in awarding custody of the child to the mother 

and did not abuse its discretion by refusing to impose a 

restriction upon the mother's permitting contact with Gardner. 

Accordingly, we affirm the trial court's custody award. 

 "In all child custody cases, including those between a 

parent and a non-parent, 'the best interests of the child are 

 

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

designated for publication. 
 2 

paramount and form the lodestar for the guidance of the court in 

determining the dispute.'" Bottoms v. Bottoms, 249 Va. 410, 413, 

457 S.E.2d 102, 104 (1995) (quoting Bailes v. Sours, 231 Va. 96, 

99, 340 S.E.2d 824, 826 (1986)). 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 the 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 is strong, a non-parent may 

overcome the presumption by adducing clear and convincing 

evidence of special facts and circumstances that constitute an 

extraordinary reason to take the child from its parent, or 

parents. Bailes, 231 Va. at 100, 340 S.E.2d at 826; Mason v. 

Moon, 9 Va. App. 217, 220, 385 S.E.2d 242, 243 (1989). 

 First, the appellants urge that in cases such as this, 

instead of applying the parental presumption, this Court adopt a 

per se rule prohibiting contact, as a matter of law, between a 

child and the killer of the child's natural parent. We decline 

to embrace such a rigid principle. A per se rule would vitiate a 

trial court's ability to weigh the myriad of circumstances that 

must be considered in determining the best interests of a 

particular child whose well-being lies before it. See Bottoms, 

249 Va. at 419, 457 S.E.2d at 108; Doe v. Doe, 222 Va. 736, 748, 

284 S.E.2d 799, 806 (1981) (rejecting per se rule of parental 

unfitness of homosexual parent and finding homosexual conduct 
 3 

another important consideration in determining custody); see also

Venable v. Venable, 2 Va. App. 178, 186, 342 S.E.2d 646, 651 

(1986) ("In determining the best interests of the child, a court 

must consider all the evidence and facts before it.") (emphasis 

added). Accordingly, we reject the appellants' invitation to 

adopt a per se rule that prohibits a child having contact, 

visitation or custody with the killer of the child's parent. We 

leave such determination to the trial court's sound discretion. 

 Appellants next contend that the trial court abused its 

discretion by granting custody of the child to his mother, whose 

romantic friend, Kenneth Gardner, killed the child's natural 

father. Specifically, they assert that the trial court's order 

constitutes reversible error because under the circumstances here 

any contact between the child and Gardner cannot be in the 

child's best interests. 

 The trial court is vested with broad discretion in making 

the decisions that are necessary to promote the child's best 

interests. Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 

794, 795 (1990). A trial court's determination of matters within 

its discretion is reversible on appeal only where the trial court 

has abused that discretion. Id. (citing M.E.D. v. J.P.M., 3 Va. 

App. 391, 398, 350 S.E.2d 215, 220 (1986)). Moreover, when the 

trial court hears evidence ore tenus, its findings are entitled 

to the weight accorded to a jury verdict and such findings should 

not be disturbed on appeal unless plainly wrong or unsupported by 
 4 

the evidence. Bottoms, 249 Va. at 414, 457 S.E.2d at 104-05; 

Bailes, 231 Va. at 100, 340 S.E.2d at 827. 

 In this case, the trial court heard evidence ore tenus from 

the parties. The appellants' evidence consisted of their 

testimony detailing their feelings about allowing their 

grandchild to be in the company of the person who killed their 

son, the child's father. The mother presented testimony from a 

clinical psychologist who opined that the child would benefit 

from a caring stepfather or father figure, whether Gardner or 

someone else. 

 The law presumes that the child's best interests are served 

by awarding custody to his mother, Michelle King. See Bottoms, 

249 Va. at 413, 457 S.E.2d at 104. The appellants did not prove 

by clear and convincing evidence that contact between the child 

and Gardner, in and of itself, constitutes an "extraordinary 

reason" to deny the mother custody of her son. See Mason, 9 Va. 

App. at 221-22, 385 S.E.2d at 244 (holding that non-parents' 

showing of possible adverse effects from contact between child 

and killer of child's natural parent were insufficient to rebut 

presumption favoring custody to parent). The evidence fails to 

prove that contact between the child and Gardner would be 

detrimental to the child. In fact, the psychologist's testimony 

was to the effect that contact with Gardner would benefit the 

child. Accordingly, we cannot say that the trial court's order 

was an abuse of discretion or unsupported by the evidence. 
 5 

 For the foregoing reasons, we affirm the decree of the 

circuit court. 

Affirmed.