Crystal Mother

Crystal Mother

Virginia Separation Agreements Child Custody Lawyers Maryland Massachusetts Mother Grandmother

MARIE B. MASON v. RUBY D. MOON

Court of Appeals of Virginia

9 Va. App. 217 

Victor Moon and Marie Moon (Mason) were married on October 9, 1981. A daughter, Crystal Moon, was born on April 11, 1984. After the child's birth, Ruby Moon, the child's paternal grandmother, primarily cared for Crystal during the day while the parents worked.  Marie and Victor Moon separated in July 1986, and executed a voluntary separation agreement which granted custody of the child to Marie Moon. On September 6, 1987, at a public parking lot while delivering Crystal to her mother for a visitation, Victor Moon assaulted Marie Moon's boyfriend, Billy Robert Mason, with a firearm. Mason, who had driven Marie Moon to the parking lot, obtained a gun from his vehicle and shot and killed Victor Moon. Thirteen days later Marie Moon and Billy Mason were married. The mother and the paternal grandmother, Ruby Moon, both filed petitions for custody of Crystal. The grandmother was granted temporary custody and has had Crystal in her continuous care throughout these proceedings.  The circuit court found that the mother was a fit parent but that placing the child in the home with her father's killer was an extraordinary reason to deny the mother custody.  Mother appealed the judgment of the circuit court which awarded custody of her daughter to the daughter's grandmother.

Whether the trial court erred in finding that the mother had voluntarily relinquished custody?

The court held that "a voluntary relinquishment occurs when a parent willingly agrees or consents to having their child placed in the custody of a non-parent. However, voluntary relinquishment does not encompass a custody agreement between two separating or divorcing spouses which voluntarily resolves a custody determination between them, even when the agreement may have facilitated another relationship.  No credible evidence exists to support the trial court's finding that Marie relinquished custody of her daughter." 

Whether the presumption favoring custody by the natural parent had been rebutted by proof of extraordinary circumstances?

The grandmother failed to produce clear and convincing evidence of either a voluntary relinquishment or circumstances constituting an extraordinary reason to rebut the presumption in favor of Marie Mason having custody of her daughter, Crystal. Accordingly, the presumption that a parent is entitled to custody of his or her child over a non-parent still obtained and Marie Mason did not have the burden of proving that the child's best interest would be served by being with her.

This court reverses the trial court's decision and finds that Marie Mason is entitled to custody of her daughter. On remand the trial court is directed to implement a plan to reestablish custody with the mother consistent with this opinion.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm's unofficial views of the Justices' opinions.  The original opinions should be consulted for their authoritative content.

About the Author

The SRIS Law Group Family Law Attorneys assist clients with divorce & child custody issues in Maryland, Virginia & Massachusetts

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