COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

VIRGINIA BONDS 

 MEMORANDUM OPINION* BY 

v. Record No. 2445-95-1 JUDGE RICHARD S. BRAY 

 JULY 16, 1996 

MARVIN ANDERSON 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John C. Morrison, Jr., Judge 

 Anthony L. Montagna, Jr. (Montagna & 

Montagna, P.C., on brief), for appellant. 

 Stuart R. Gordon for appellee. 

 Virginia Bonds appeals the trial court's order awarding 

Marvin Anderson custody of his natural child, Monte D'Artis. 

Bonds, the child's maternal grandmother, complains on appeal that 

(1) the evidence rebutted the legal presumption which favored 

custody in Anderson, and (2) the trial court erroneously 

overruled her motion for an issue out of chancery. Finding no 

error, we affirm the trial court. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to a disposition of this 

appeal. In accordance with well established principles, we 

review the evidence on appeal in the light most favorable to the 

party prevailing below, Anderson in this instance. Bottoms v. 

Bottoms, 249 Va. 410, 414, 457 S.E.2d 102, 105 (1995). 

 

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

designated for publication. 
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 Monte D'Artis was born to Felicia Bonds (mother), daughter 

of Virginia Bonds, and Marvin Anderson on February 12, 1992. 

Monte's parents never married, but were cohabitating together at 

the time of his birth. In late 1993, mother and Anderson 

separated, and mother retained custody of Monte, supporting him 

without Anderson's assistance or attention. Several months 

thereafter, Anderson relocated to Florida, residing there with 

his fiancee, Lisa Smith. On December 10, 1994, mother was 

fatally injured in an automobile accident, and both Anderson and 

Bonds petitioned for custody of Monte. Anderson prevailed in the 

trial court, hence this appeal by Bonds. 

 The record discloses that Anderson was employed as a night 

watchman in Florida, earning approximately $9,000 per year while 

pursuing education as a "pharmacist assistant." He projected an 

annual salary of approximately $28,000 upon completion of the 

training program. Anderson was initially vested with custody of 

Monte by temporary order of February 8, 1995, and has since 

provided the child with care, supervision and support. 

Anderson's fiancee assists him with Monte, including related care 

and support. The three reside in a two-bedroom apartment 

adequate for Monte's needs, although Anderson and his fiancee 

cohabit without the benefit of marriage. 

 Bonds was the child's primary caretaker from the time of his 

mother's death until Anderson assumed custody. She holds a 

bachelor's degree in social work and earns approximately $37,000 
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per year as a rehabilitation counselor. It is uncontroverted 

that she could provide a suitable home for Monte. Bonds' 

evidence included testimony that Anderson once "picked the child 

up from the floor" and "slammed him up against . . . the corner 

of a door and a wall" and had displayed violent and abusive 

conduct in his relationships with others, perhaps encouraging 

such behavior in Monte. Bonds contends that Anderson's history 

of personal and financial neglect of the child prior to the 

mother's death evinced an indifference to Monte's well-being. 

Moreover, she condemns Anderson's "meretricious relationship" 

with his fiancee and its immoral influence on the child. 

 CUSTODY 

 "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) (citation omitted). Where both a parent 

and non-parent seek custody of a child, "'the law presumes that 

the child's best interests will be served when in the custody of 

its parent.'" Bottoms, 249 Va. at 413, 457 S.E.2d at 104 

(citation omitted). 

 "Although the presumption favoring a parent over a 

non-parent is a strong one, it is rebutted when certain factors 

are established by clear and convincing evidence." Bailes, 231 

Va. at 100, 340 S.E.2d at 827. Such factors include (1) parental 
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unfitness; (2) a previous order of divestiture; (3) voluntary 

relinquishment; (4) abandonment; and (5) a finding of "'special 

facts and circumstances . . . constituting an extraordinary 

reason for taking a child from its parent, or parents.'" Id. 

(citations omitted). Circumstances to be "weighed in determining 

[parental] unfitness" include (1) "parent[al] misconduct that 

affects the child," (2) "neglect of the child," (3) "a 

demonstrated unwillingness and inability to promote the emotional 

and physical well-being of the child," (4) "nature of the home 

environment," and (5) "moral climate in which the child is to be 

raised." Bottoms, 249 Va. at 419, 457 S.E.2d at 107. 

 Here, the record reflects that Anderson had obtained 

employment in Florida while pursuing an education. He was 

regularly involved in the child's care and provided an adequate 

home and attendant support for Monte. While regrettable, there 

is no evidence that Anderson's cohabitation with his fiancee has 

visited any adverse effect on the child. See Sutherland v. 

Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992). 

 "[W]e presume the trial court thoroughly weighed all the 

evidence and decreed custody as it believed would be to the best 

interest of the child." Id. at 44, 414 S.E.2d at 618. 

"'Where . . . the court hears the evidence ore tenus, its finding 

is entitled to great weight and will not be disturbed on appeal 

unless plainly wrong or without evidence to support it.'" 

Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 
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631 (1988) (citation omitted). Here, the record provides 

sufficient support for the trial court's finding that Bonds 

failed to overcome by clear and convincing evidence the 

presumption that custody in Anderson best served Monte's 

interests and, therefore, we are constrained to affirm the 

disputed order.1

ISSUE OUT OF CHANCERY 

 Code § 8.01-336(E) provides that "[i]n any suit in equity, 

the court may . . . direct an issue to be tried by a jury" if it 

appears that "the case will be rendered doubtful by conflicting 

evidence . . . ." However, the decision is entrusted to the 

sound discretion of the trial court and its determination will 

not be reversed absent an abuse of such discretion. Code 

§ 16.1-296; Hur v. Virginia Dep't of Social Servs., 13 Va. App. 

54, 58, 409 S.E.2d 454, 457 (1991). 

 In overruling Bonds' motion in this instance, the court 

determined that the "issues posed . . . [were] not such to keep a 

chancellor from properly exercising his or her discretion on 

sound legal principles of reason and justice . . . ." Our review 

of the record does not reflect that the factual issues "were 

necessarily more appropriate for a jury than for the judge" and, 

thus, find no abuse of discretion in the court's ruling. Edwards 

v. County of Arlington, 5 Va. App. 294, 314, 361 S.E.2d 644, 655 

 

 1The record establishes that Bonds was also a suitable 

custodian for Monte. 
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(1987). 

 Accordingly, we affirm the trial court. 

 Affirmed.