COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Bray 

Argued at Richmond, Virginia 

SHARON LYNNE BOTTOMS 

v. Record No. 2157-96-2 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

PAMELA KAY BOTTOMS JULY 29, 1997 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Buford M. Parsons, Jr., Judge 

 Donald K. Butler (Player B. Michelson; 

Michael Adams; Matt Coles; Mary Bauer; 

Morano, Colan & Butler; Lesbian and Gay 

Rights Project American Civil Liberties 

Union; American Civil Liberties Union of 

Virginia, on briefs), for appellant. 

 Torrence M. Harman (Harman & Harman, P.C., on 

brief), guardian ad litem for Kenneth Tyler 

Doustou. 

 R. R. Ryder for appellee. 

 The instant proceedings were commenced in the Henrico County 

Juvenile and Domestic Relations District Court upon petitions of 

Sharon Lynne Bottoms (mother) praying (1) for custody of her 

infant son, previously awarded to his maternal grandmother, 

Pamela Kay Bottoms (grandmother), by decree of the trial court, 

and (2) an order requiring grandmother to "show cause why she 

should not be held in contempt . . . for her repeated violations 

of the visitation terms" of such decree. In response, 

grandmother petitioned for termination or further restriction of 

mother's rights of visitation. 

 Following appointment of a guardian ad litem for the child, 

 

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

designated for publication. 
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the district court conducted an ore tenus hearing, dismissed the 

"show cause" and declined to disturb either the custody or 

visitation provisions of the existing decree. Mother appealed to 

the circuit court, expressly withdrawing her petition for custody 

and challenging only the visitation adjudication. The trial 

court subsequently also conducted an ore tenus hearing, which 

culminated in a decree dismissing mother's "show cause" petition 

and substantially modifying the terms of visitation. 

 On appeal to this Court, mother challenges those provisions 

of such decree which delimit the frequency, duration and situs of 

both regular and holiday visitation and expressly prohibit all 

"contact . . . , including verbal contact[,]" between the child 

and April Wade, mother's female housemate and sexual partner.1 

Mother complains that such constraints improperly restricted 

access to the child, contrary to the rights and interests of both 

mother and child, and resulted from the trial court's 

unwillingness to consider relevant evidence in accordance with 

statute. Mother also contends that the court erroneously 

declined to order mother, grandmother, and child "into 

counseling." We agree that the court failed to consider proper 

evidence and reverse the disputed decree. 

 The parties are fully conversant with the record, and a 

 

 1Mother's relationship with April Wade was fully discussed 

by this Court and the Supreme Court of Virginia in Bottoms v. 

Bottoms, 18 Va. App. 481, 444 S.E.2d 276 (1994), rev'd, 249 Va. 

410, 457 S.E.2d 102 (1995), and remains substantially unchanged 

on this record. 
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recitation of the facts is unnecessary to this memorandum 

opinion. 

 It is well established that "[t]he authority vested in a 

trial court to decide issues concerning the . . . custody . . . 

[and] visitation rights of the non-custodial parent . . . is a 

matter of judicial discretion which courts must exercise with the 

welfare of the children as the paramount consideration." 

Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 

11 (1986); see Code §§ 20-107.2, 20-124.2. Guided by those 

factors enumerated in Code § 20-124.3, the court must fashion 

"visitation arrangements" which at once promote the "best 

interests" of the infant, Code § 20-124.2, and the "desirable 

objective . . . that the child . . . continue to receive the 

noncustodial parent's affection and nurture through the mechanism 

of visitation." M.E.D. v. J.P.M., 3 Va. App. 391, 397, 350 

S.E.2d 215, 219 (1986). However, "while the legal rights of a 

parent should be respected . . . , those . . . rights may be 

disregarded if demanded by the interests of the child." Bottoms 

v. Bottoms, 249 Va. 410, 419, 457 S.E.2d 102, 108 (1995). 

 Manifestly, "[e]ach case . . . require[s] . . . considerable 

judgment in placing conditions upon the frequency, duration, 

place, and extent of visitation" appropriate to the particular 

circumstances. Eichelberger, 2 Va. App. at 413, 345 S.E.2d at 

12. The court must carefully scrutinize the entire record, 
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weighing the pertinent statutory factors and "[s]uch other 

[evidence] as the court deems necessary and proper to the 

determination," Code § 20-124.3, including "the nature of the 

home environment and moral climate" which may affect the child. 

Bottoms, 249 Va. at 419, 457 S.E.2d at 107; see Carrico v. 

Blevins, 12 Va. App. 47, 50-51, 402 S.E.2d 235, 237 (1991). 

Having once adjudicated the issues of custody and visitation, the 

court retains jurisdiction to modify a decree "when subsequent 

events render such action appropriate for the child's welfare." 

Eichelberger, 2 Va. App. at 412, 345 S.E.2d at 12; see Code 

§ 20-108. 

 Here, in restricting mother's visitation with the child 

"solely" to her residence and prohibiting "contact . . . in any 

manner" with April Wade, the court declared that it was "bound to 

[the] precedence" of Roe v. Roe, 228 Va. 722, 324 S.E.2d 691 

(1985). In Roe, the Court expressly "declined to hold that every 

lesbian mother or homosexual father is per se an unfit parent," 

noting that "conduct[] in the child[]'s presence" and the 

attendant "impact of [such] relationship upon [the] child" were 

the relevant inquiries, not simply the sexual status of the 

parent or parents. Id. at 727, 324 S.E.2d at 693-94. Mindful, 

however, that "'[t]he moral climate in which children are to be 

raised'" warrants "'the most careful consideration in a custody 

proceeding,'" the Court concluded that, "[i]n the circumstances
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of this case," the "best interests of the child"2

 dictated 

divestiture of custody from the homosexual father, subject to a 

residual right of specifically limited visitation. Id. at 726, 

728, 324 S.E.2d at 693, 694 (emphasis added) (quoting Brown v. 

Brown, 218 Va. 196, 199, 237 S.E.2d 89, 91 (1977)). 

 The issue of parental sexual preference was again undertaken 

by the Supreme Court in reviewing an earlier custody decree in 

the instant cause. After reaffirming that mother's sexual 

persuasion did not render her "per se an unfit parent," the court 

recognized such circumstance as reflective of the "home 

environment and moral climate," an "important consideration." 

Bottoms, 249 Va. at 419, 457 S.E.2d at 107-08 (emphasis added); 

accord Doe v. Doe, 222 Va. 736, 748, 284 S.E.2d 799, 806 (1981); 

Carrico, 12 Va. App. at 50-51, 402 S.E.2d at 237. 

 Thus, both Code § 20-124.3 and controlling appellate 

decisions clearly instruct that the parental rights of custody 

and related visitation suitable to each instance must evolve from 

a myriad of considerations, all calculated to exalt and promote 

the best interests of the child. While issues of adult sexuality 

and related behavior are significant to an adjudication of 

visitation, such factors must be assessed by the court together 

with other relevant circumstances and balanced in a visitation 

 

 2The record in Roe indicated that the child was "unhappy" in 

her homosexual father's home, "hate[d]" her father's companion 

and wished a return to her mother. 228 Va. at 724, 324 S.E.2d at 

692. 
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arrangement which both benefits and protects the child. 

 Here, however, the trial court misconstrued Roe to require a 

disposition based solely upon mother's sexual status, implicitly 

ignoring evidence of other pertinent statutory factors and 

without regard to evidence of the impact of attendant conduct on 

the child. The disputed order, therefore, did not emanate from a 

proper analysis of relevant evidence. Similarly, the trial court 

erroneously declined to consider evidence of the relationship 

between mother and grandmother. Clearly, the interaction of 

mother and grandmother, and its effects upon mother's visitation 

with the child and upon the child, is pertinent to the court's 

resolution of the instant petition and a factor contemplated by 

the provisions of Code § 20-124.3. 

 Accordingly, we reverse the decree and remand to the trial 

court for reconsideration of the evidence consistent with this 

opinion, including any additional evidence deemed appropriate by 

the court to a proper disposition of the petitions. 

 Reversed and remanded.