COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Elder 

Argued at Richmond, Virginia 

WILLIAM GARY WADFORD 

 MEMORANDUM OPINION* BY 

v. Record No. 3011-97-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 16, 1998 

ANGELA DENISE RICK WADFORD 

 AND RANDALL T. REDFORD 

FROM THE CIRCUIT COURT OF LUNENBURG COUNTY 

William L. Wellons, Judge 

 Nora J. Miller (Watson & Nelson, P.C., on 

brief), for appellant. 

 Carol B. Gravitt (Gravitt & Gravitt, P.C., on 

brief), for appellee. 

 William Gary Wadford appeals from an order of the circuit 

court granting the custody petitions of Angela Denise Rick 

Wadford, his former wife, for custody of her daughter and of 

Randall T. Redford for custody of the same child, Redford's 

daughter. For the reasons that follow, we find no reversible 

error and affirm the order. 

 I. 

 The evidence in the record proved that William Wadford ("the 

husband") and Angela Wadford ("the wife") were married in 1986. 

The husband and the wife are the natural parents of a son, who 

was born in 1985 before the marriage. During the course of their 

marriage, the husband and the wife separated frequently. During 

one of these separations, the wife had a relationship with 

 

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

designated for publication. 
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Randall Redford. The wife and husband later resumed living 

together. During their cohabitation, the wife had a daughter in 

1989. 

 The wife and the husband again separated in 1994. During 

this separation, the husband was awarded custody of the two 

children. The wife and the husband filed separate petitions for 

divorce during the separation. In December 1996, during the 

separation, the wife, the daughter and Redford had DNA tests to 

determine paternity. The analysis indicated a probability of 

99.81% that Redford was the daughter's natural father. The wife 

testified that she began suspecting the daughter was not the 

husband's child when the daughter was about five years old and 

the daughter began to resemble Redford. Redford testified that 

for several years he also had suspicions that he was the 

daughter's father because his relatives told him the daughter 

resembled him. In February 1997, Redford and the wife filed 

petitions seeking custody of the daughter. A judge of the 

juvenile and domestic relations district court ordered custody of 

the children to remain with the husband. 

 In the circuit court, the trial judge considered in one 

proceeding evidence concerning the divorce between the husband 

and the wife and the de novo appeals of the wife and Redford from 

the custody order of the juvenile court. At the conclusion of 

the ore tenus hearing, the trial judge entered a decree of 

divorce upon the wife's petition for a non-fault divorce. In a 
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later separate order, the trial judge awarded custody of the son 

to the husband and awarded custody of the daughter to the wife 

and Redford. 

 II. 

 On this appeal, the husband raises the following issues: 

 1. Whether the trial judge erred in refusing 

to allow the children to testify at the 

hearing; 

 2. Whether the trial judge erred in failing 

to make separate rulings as to law and fact 

with respect to the wife's and Redford's 

petitions for custody of the daughter because 

different legal tests were required to be 

applied to each petition; 

 3. Whether the trial judge erred in 

determining that Redford should be awarded 

custody of the daughter; and 

 4. Whether the trial judge erred in 

determining that the wife should be awarded 

custody of the daughter. 

 The wife and Redford contend that they should be awarded 

costs and attorneys' fees incurred in this appeal because the 

appeal is frivolous. 

 A. 

 At trial, the husband's counsel said to the judge, "We are 

going to ask you speak with the children." In support of that 

request, the husband's counsel argued that "particularly in the 

case where you are going to allow statements that the children 

have made to not only parties, but third parties to come into 

evidence, I think it should come in. . . . I hesitate to call the 

children to the stand, but I believe the children will tell you a 
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lot of what [the wife] just said isn't true." The trial judge 

responded "that it would probably not serve any additional 

purpose in terms of the Court's decision making process to speak 

with the children. . . . So the Court is going to rule that it 

will not interview the children." When the judge declined to 

speak with the children in his chambers, the husband's counsel 

did not call the children as witnesses to testify. 

 The trial judge's decision whether to interview children in 

the judge's chambers will not be reversed unless the trial judge 

abused his discretion. See M.E.D. v. J.P.M., 3 Va. App. 391, 

404, 350 S.E.2d 215, 224 (1986). Beyond counsel's assertion, the 

record does not disclose any necessity for the judge to have 

spoken to the children in his chambers. Thus, the record fails 

to establish that the judge's decision was an abuse of 

discretion. 

 Furthermore, no effort was made to present the children as 

witnesses. See Lawson v. Lawson, 198 Va. 403, 409, 94 S.E.2d 

215, 220 (1956). In a similar situation, we have ruled that 

"[i]n the absence of any action to call the child[ren] as . . . 

witness[es], . . . the court did not err in declining to 'meet 

with' [them] in chambers." M.E.D., 3 Va. App. at 404, 350 S.E.2d 

at 224. Here, as in that case, the husband "took no affirmative 

step to tender the child[ren] as . . . witness[es] and, in fact, 

expressly eschewed any such step." Accordingly, the record does 

not support the husband's claim of error. 
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 B. 

 Alleging that the wife lost custody because of "a prior 

divestiture," the husband argues that the trial judge erred in 

giving the wife "the presumption as a natural parent." We 

disagree with this assertion because no evidence proved that an 

order had been entered divesting the wife of parental rights. 

The evidence proved that in an earlier proceeding between the 

husband and the wife, a court gave custody of the children to the 

husband and granted the wife visitation. Thus, when the wife 

petitioned for a change in custody in this proceeding, the trial 

judge was required to determine "first, has there been a change 

in circumstances since the most recent custody award; [and] 

second, would a change in custody be in the best interests of the 

children." Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 

(1983). The record establishes that the trial judge applied the 

correct rule of law when determining the wife's petition. 

 C. 

 Asserting that "[t]he correct legal test as to whether 

[Redford] should have been granted custody of [the daughter] was 

enunciated in Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 

(1986)," the husband argues that the trial judge failed to apply 

that test. Although we agree that the trial judge did not 

explicitly cite Bailes in his ruling, we conclude that the trial 

judge committed no reversible error. 

 In his ruling from the bench following the ore tenus
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hearing, the trial judge made the following statements pertinent 

to the issues: 

 The Court does have two separate cases. 

We have two children. Usually when the Court 

has two children and determines custody, 

usually the issues are by and large the same 

and more often than not the Court can just 

look at it as being a single case. I'm not 

able to do that here for the reasons I've 

given in terms of the different relationships 

that the children have. The revelation that 

. . . Redford is indeed the father of [the 

daughter] is an extremely important fact in 

many ways. I will address that later. I 

want first of all to let you know my decision 

with reference to [the son] . . . . Then I 

will address my decision relating to [the 

daughter]. 

 * * * * * * * 

 Now, the Court is going to address the 

custody issue relating to [the daughter]. 

This is not an easy decision to make, not 

that the decision with [the son] was an easy 

decision to make, but we have complexities 

here that create the difficulties this Court 

is facing; that is . . . Redford's paternity, 

the fact the Court has now established that 

. . . Redford is the father of [the 

daughter]. 

 The cases are very clear in terms of the 

right of a natural parent. . . . [A]s between 

a natural parent and nonparent the law 

presumes the best interests of the child will 

be served when the child is within the 

custody of the natural parents. Then there 

is the additional established rule the parent 

prevails unless the nonparent bears the 

burden of proving by clear and convincing 

evidence both that the parent is unfit and 

that the best interests of the child will be 

promoted by granting custody to the 

nonparent. Either parent with a suitable 

home has the right to custody of his child 

superior to the rights of others. 

 * * * * * * * 
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 We now have in this proceeding not only 

the natural mother who was a party to that 

prior proceeding, but . . . Redford. The 

Court finds that there has been a significant 

change in circumstances, very significant 

change in circumstances. And the main change 

is that we have before the Court another 

father, . . . Redford. Not only do we have 

another father before the Court, but we have 

another sister, a sibling, a half sister 

. . . who has testified. We have evidence of 

how . . . Redford has provided for that 

child, which is an honor student and 

apparently has developed quite well. 

 * * * * * * * 

 The Court, even if it applies the standard 

of what is in the best interests of the child 

and in doing that considering the fact that 

[the husband] has been a good father to this 

child -- he hasn't been perfect. There have 

been some shortcomings. The Court 

nevertheless feels that even if it applies 

what is in the best interests of the child 

standard notwithstanding the presumption that 

might have applied to a natural parent as 

opposed to nonparent, finds it is in the best 

interests of [the daughter] that she be 

placed in the custody of her natural mother 

and her natural father. So that will be the 

decision of the Court as to that child. 

 We quote extensively from the trial judge's ruling from the 

bench because those statements clearly reflect that the trial 

judge was aware of the factual and legal issues to be decided and 

was aware of the legal standard of proof. The trial judge's 

order also reflects those understandings because he ruled as 

follows: 

 [T]he Court finds that there has been a very 

significant change in circumstances since the 

last custody order, that . . . Redford has 

been - found to be the father of [the 

daughter]; that the natural father and mother 
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are together - providing a home for the child 

and for the first time giving the child an 

opportunity to be in the home of the natural 

parents; that they are in a new home with 

adequate room for the child; that by living 

with them, [the daughter] will remain in the 

general community where she has grown up and 

will remain near the paternal grandmother's 

home; that [the daughter] enjoys a closer 

relationship with her mother than does [the 

son]; that . . . [the daughter] has a strong 

relationship with her father, . . . Redford, 

and that without giving the parties a 

presumption of custody as natural parents, 

the best interests of [the daughter] will be 

served by awarding custody of [the daughter] 

to [the wife] and . . . Redford. 

 The husband argues in his brief that in this "custody 

dispute between a parent [, Redford,] and a non-parent [, the 

husband,] 'the law presumes that the child's best interests will 

be served when in the custody of its parent.' Judd v. Van Horn, 

195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)." Thus, he contends 

the trial judge's ruling reflects an error because the trial 

judge did not apply this test to Redford's petition. 

 The trial judge's ruling clearly reflects that even if the 

trial judge erred, he erred in favor of the husband by applying a 

test more favorable to the husband. To rebut the presumption 

favoring a parent over a non-parent, the evidence must clearly 

and convincingly prove "(1) parental unfitness; (2) a previous 

order of divestiture; (3) voluntary relinquishment; . . . (4) 

abandonment[;]" and (5) "'special facts and circumstances . . . 

constituting an extraordinary reason for taking a child from its 

parent, or parents.'" Bailes, 231 Va. at 100, 340 S.E.2d at 827 
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(citations omitted). Although the husband's evidence may not 

have been expressly considered by the judge as evidence rebutting 

the presumption favoring a natural parent, the trial judge's 

ruling reflects that the evidence was considered in the trial 

judge's determination of the best interests of the daughter. 

 By stating that he was not going to give Redford "a 

presumption of custody as [a] natural [parent]," the trial judge 

eliminated the husband's burden of overcoming this presumption by 

clear and convincing evidence. Instead, the trial judge 

considered the best interests of the child, a more stringent test 

for Redford to meet. Thus, even if the trial judge erred, the 

trial judge erred in favor of the husband by eliminating his 

burden of overcoming the natural parent presumption and applying 

a test more favorable to the husband. We find no reversible 

error. 

 D. 

 The husband further argues that the evidence did not support 

the trial judge's decision. In deciding this issue, we apply the 

well established standard that "[w]hen the [trial judge] hears 

the evidence ore tenus, [the judge's] findings are entitled to 

the weight accorded a jury verdict, and they will not be 

disturbed on appeal unless they are plainly wrong or without 

evidence to support them." Bailes, 231 Va. at 100, 340 S.E.2d at 

827. 

 Based upon evidence in the record, the trial judge found 
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that Redford was the child's natural parent. The evidence proved 

that after Redford received the DNA results, Redford promptly 

filed for custody. The record contains evidence from which the 

trial judge could have found that Redford, who the trial judge 

found had been a good parent to his other child, was a fit 

parent; that Redford had asserted his custody interest without 

delay after Redford learned of the DNA results; that the 

"relationships in this family are just extremely confusing and 

complex"; and that special facts and circumstances establish that 

"it is in the best interests of [the daughter] that she be placed 

in the custody of her natural mother and her natural father." 

 On our review of the evidence, we cannot say that the trial 

judge's findings are plainly wrong or without evidence to support 

them. 

 E. 

 We do not find, as suggested by the wife and Redford, that 

this appeal was so lacking in merit that attorneys' fees should 

be awarded. Accordingly, we make no award of attorneys' fees for 

this appeal. 

 For these reasons, we affirm the decree. 

 Affirmed