84 Va. Cir. 245
Wise Norton Cir. Ct.2012Background
- Adrianna Jo Keith, born November 16, 2009, is in the legal custody of Wise County DSS; Welch and Mays petition for legal and physical custody.
- Adrianna was placed with Welch as a foster child in November 2009 after an emergency home study; Mays was a foster care household member.
- Adrianna has PKU requiring strict dietary management; the Petitioners monitored her diet and assisted with special formula and medical visits.
- Over 18 months, Welch acted as foster parent and the household functioned as a co-parenting unit with Mays; adoption was contemplated.
- Two prior custody petitions were denied; a May 2011 incident led to a founded DSS complaint against Welch and removal of Adrianna from the home; later placements followed, ending with current placement with Amanda Stanley briefly and then with Janie Sanders.
- As of trial, Adrianna remained in the Sanders foster family; petition for custody was heard de novo on January 27, 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Welch and Mays have standing as persons with a legitimate interest | Welch qualifies; Mays also has legitimate interest. | Mays’ interest is tenuous; she was not a named foster parent. | Both Welch and Mays have legitimate-interest standing. |
| Whether a homosexual relationship bars custody | Welch and Mays’ relationship should disqualify them as guardians. | Homosexuality should disqualify them from custody. | Homosexual relationship cannot be used as a custody bar; rejected as ground for custody denial. |
| What factors of Va. Code § 20-124.3 support the best interests determination | First eighteen months with Petitioners supports custody. | Current bond with Sanders and risk of further trauma favor current placement. | Best interests favor remaining with the current Sanders placement due to bond, stability, and risk of trauma from another disruption. |
| Impact of founded DSS complaint and criminal charges on custody decision | Factual issues should not override the prior bond. | Founded complaint and active charges against a supervising parent justify denying custody. | Founded complaint and active criminal charges against one supervising parent weigh heavily against granting custody. |
Key Cases Cited
- Surles v. Mayer, 48 Va. App. 146 (2006) (liberal construction of 'legitimate interest' for custody)
- Damon v. York, 54 Va. App. 544 (2009) (consideration of best interests with statutory factors)
- Bailes v. Sours, 231 Va. 96 (1986) (best interests as lodestar in custody decisions)
- Walker v. Brooks, 203 Va. 417 (1962) (foundational framework for best interests in custody)
- Sargent v. Sargent, 20 Va. App. 694 (1995) (bonding and developmental considerations in custody)
- Brown v. Brown, 218 Va. 196 (1977) (moral climate as a factor in custody determinations)
- Doe v. Doe, 222 Va. 736 (1981) (homosexual parents not inherently unfit without proof)
- Lawrence v. Texas, 539 U.S. 558 (2003) (constitutional protection for homosexual conduct)