Bottoms v. Bottoms

Court of Appeals of Virginia · 1994 · Family Law

444 S.E.2d 276 (1994)

Updated August 1, 2026

Family Lawcustodysexual orientationchild custodyparental presumptionthird-party custodyclear and convincing evidenceparental unfitness

Facts

Sharon Bottoms, the child’s natural mother, had legal custody under a prior divorce decree, though she often relied on her mother, Kay Bottoms, to care for the child. Sharon later told Kay that the child would spend less time at Kay’s home because Kay’s live-in companion had sexually abused Sharon when she was growing up; soon after, Kay filed for custody. Sharon acknowledged that she lived with April Wade in a lesbian relationship and engaged in private consensual sexual acts in the home, but testified that no sexual activity occurred in the child’s presence, and all psychological evidence indicated no visible or discernible effect on the child. The evidence also showed Sharon had a close and loving relationship with her son, adequately provided for him, and had not abused, neglected, or endangered him.

Issue

Whether a maternal grandmother, as a non-parent, presented clear and convincing evidence sufficient to rebut the presumption favoring the natural mother’s custody by proving that the mother was unfit or that continued custody with the mother would be deleterious to the child. More specifically, the question was whether the mother’s open lesbian relationship, private illegal sexual conduct, and evidence of imperfect parenting justified transferring custody to the grandmother.

Rule

In a custody dispute between a natural parent and a non-parent, the law presumes the child’s best interests are served in the natural parent’s custody. A non-parent may obtain custody only by clear and convincing evidence that the parent is unfit or that special circumstances provide an extraordinary reason showing continued custody with the parent will be harmful or deleterious to the child. A parent’s homosexuality or private illegal sexual conduct does not per se render the parent unfit; absent proof that the conduct exposes the child to harm or poses a substantial threat to the child’s emotional, psychological, or physical well-being, custody may not be taken from the parent.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Richmond, Nina Alvarez has legal custody of her four-year-old son. The boy's aunt, Marcy Cole, petitions for custody, showing that Marcy owns a larger home, has a steadier income, and has cared for the child many weekends, but she offers no evidence that Nina has abused, neglected, or harmed the child.

How should the court rule on Marcy's petition?

Explanation. In a custody dispute between a natural parent and a non-parent, the child's best interests are presumed to be served by custody with the natural parent. The non-parent must first rebut that presumption by clear and convincing evidence that the parent is unfit or that continued custody with the parent will be deleterious to the child. Until that threshold is met, the court cannot award custody simply because the non-parent may offer a better or more stable home.