What was the Virginia Supreme Court decision in Bailes v. Sours?

Answer 1

Bailes v. Sours, 231 Va. 96, 340 SE 2d.102 824 (1986)

Bailes v. Sours, (1986) is one of the preeminent custody cases in the Virgina Supreme Court, and one often cited when awards are made under extenuating circumstances.

Bailes was the biological mother of a 12-year-old boy who had lived with his father, step-mother and half-brother for ten years. The boy's father died, and the biological mother petitioned for custody on the grounds that, when deciding custody issues between a parent and a non-parent, the law presumes the child's best interest is served by being placed in the custody of the parent. The mother (or father) usually prevails.

The Virginia Supreme Court determined the biological mother was a virtual stranger to her son, and that the child strongly preferred to stay with his step-mother and half-brother. In the eyes of the Court, and in light of the trauma the child had suffered with the loss of his father, change of custody would be harmful.

They also stated: "Although a child's preference should be considered and given appropriate weight, it does not control the custody determination and is just one factor to be considered."

The Court established five factors that may be used to overcome presumptive custody:

"To overcome the presumption favoring a natural parent, the nonparent must prove by 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; or (5) special facts and circumstances constitute extraordinary reasons to take the child from the parents."

These standards are applied in contemporary cases where there is a custody dispute between a natural parent and a non-parent.

The Virginia Supreme Court affirmed the lower courts' rulings that the child should remain with the step-mother (Sours) based on "extraordinary circumstances."