VA Code 16.1-283 Interpretation

Evidence meeting the requirements of Code 16.1-283 rebuts the presumption favoring a natural parent. In Smith v. Pond, 5 Va. App. 161, 360 S.E.2d 885 (1987), the Court noted that the presumption favoring a natural parent is rebuttable, however, if the non-parent adduces clear and convincing evidence that: (1) the parents are unfit; (2) a court previously has granted an order of divestiture; (3) the parents voluntarily relinquished custody; (4) the parents abandoned the child; (5) special facts and circumstances constitute an extraordinary reason to take the child from the parents. Once the presumption favoring parental custody is rebutted, the natural parents who are seeking to regain custody must bear the burden of proving that custody with them is in the child's best interests. Id. at 163, 360 S.E.2d at 886.