NOV 18 1991
ORDER
7312
This cause came to be heard on August 20, 1991 and September 25, 1991, at a trial de novo upon the appeal of Ismail Sloan from the Order of the Amherst County Juvenile and Domestic Relations Court dated July 17, 1991. Ismail Sloan was represented by James H. Massie III, Esq.; the appellees, Mr. and Mrs. Charles Roberts, were represented by Linda W. Groome, Esq.; the natural mother by her guardian ad litem, Lisa L. Schenkel, Esq.; the child Shamema was represented by her guardian ad litem J. Thompson Shrader, Esq.; the Amherst County Department of Social Services, was represented by W. Edward Meeks, III, Esq.
Upon the request of Mr. Meeks, the Amherst County Department of Social Services was dismissed and released as a party from this case.
This court considered the evidence and found as follows:
1. The child Shamema was born in 1981 in New York to Honzagool Sloan and Ismail Sloan. Custody of the child was granted to Honzagool Sloan on May 24, 1982 by order of the New York Court. The father was ordered not to remove Shamema from the state of New York but did so in July 1982 during visitation, without the permission of the court or Honzagool. Although Honzagool made efforts to have the child returned to her, the child was never returned to that jurisdiction. The mother eventually returned to her native Pakistan and has made no further efforts to regain custodial possession of Shamema since then. The New York Courts eventually relinquished jurisdiction of the custodial matters to the Virginia courts.
2. Shamema was left in the care of Mr. and Mrs. Charles Roberts by Ismail Sloan from the age of less than one year until she was five. At first they were paid a fee as “babysitters”. However, later Mr. Sloan left the child for about two and a half years with no contact and no support. Mr. and Mrs. Roberts stood in loco parentis to her.
3. In 1985 Mr. Sloan returned to Virginia and filed a petition for custody in the Amherst Juvenile Domestic Relations Court. Honzagool was served by mail and by publication. On April 2, 1986 the Court gave temporary legal custody of Shamema to Ismail Sloan and physical custody to Mr. and Mrs. Charles Roberts. The court further ordered that the child should not be removed from the state of Virginia. By order dated August 25, 1986, the court ordered that effective September 7, 1986, Mr. Sloan was to be awarded physical custody, with visitation allowed to Mr. and Mrs. Charles Roberts, with a final custody hearing to be held on October 8, 1986. Between August 25, 1986 and September 7, 1986 Ismail Sloan removed the child from Virginia, again in violation of the standing court order.
4. The child and Mr. Sloan eventually resided in the United Arab Emirates until 1990. In 1990, the mother of Mr. Sloan, whom he had taken with him to the United Arab Emirates, was removed from a Bangkok hospital by a Thai lawyer and brought back to Virginia. The Thai court also awarded custody of Shamema to the Thailand Department of Public Welfare but Mr. Sloan escaped with the child back to the United Arab Emirates. However, in October 1990, Mr. Sloan’s wife, Renuka, along with her child by Mr. Sloan, Jessica, and Shamema came to Virginia by airplane with tickets purchased and sent to them by Mr. and Mrs. Roberts.
5. On August 27, 1986 Mr. and Mrs. Roberts had filed for custody of Shamema in the Amherst County Juvenile and Domestic Relations Court.
6. Honzagool Sloan, submitted herself to the jurisdiction of the Amherst County Juvenile and Domestic Relations Court by writing several letters to the court.
7. On September 5, 1991 while Shamema was visiting Mr. Sloan under the supervision of Mr. Rick Groff of the Amherst County Department of Social Services, Mr. Sloan tried to leave with her running to a rental car which he had parked near her home. In his possession were airplane tickets to Japan and the child’s passport. The child ran from him to Mr. Groff’s vehicle and locked herself in the vehicle. Mr. Sloan was arrested and charged with abduction in the City of Lynchburg.
8. Mr. Sloan testified that he was still married to at least two wives and that at least two of them and their children resided in the same house in Lynchburg for some time. There is a dispute between Mr. Sloan and his brother, who is committee for their mother in South Carolina, over possession and ownership of their home in Lynchburg. Mr. Sloan has no other place of residence.
9. Mr. Sloan, although a person of high intelligence, has no clear source of income or employment; he frequently files court cases claiming to be indigent. His credibility as a witness was very poor.
10. Mr. and Mrs.. Charles Roberts have raised the child in a stable normal middle class lifestyle and the child is thriving well in school. They have developed a close relationship with them and she views them as her parents.
11. Shamema indicated to the court her desire to live with Mr. and Mrs.. Roberts and that she did not wish to see Mr.. Sloan.
Upon consideration of these and other facts, the Court considered the case law relating to custody disputes between natural parents and non-parents. Pursuant to Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d 842 (1986), there are five factors which the court can consider to rebut the presumption of parental fitness for custody found in Patrick v. Byerly, 228 Va. 691, 694, 325 S.E. 2d 99, 101 (1985). These factors were considered by the court as they related to the case as follows: A. Unfitness - Mr. Sloan’s unfitness was exhibited in his lifestyle, attitude, behavior, instability, living circumstances, personal habits and emotional status. The court also considered his multiple wives and families living together with no concern exhibited by Mr. Sloan in this regard. Pursuant to Brown v. Brown, 218 Va. 196, 199, 237 S.E. 2d 89 (1977), the home life of Mr. Sloan was deemed to be clearly an unfit and immoral environments. B. Previous divestiture order - Mr. Sloan was previously divested of custody of Shamema by order of the New York Court. C. Voluntary relinquishment - Mr. Sloan relinquished custody of the child to Mr. and Mrs. Roberts when she was an infant. D. Abandonment - Mr. Sloan abandoned the child for two and one half years. E Special Circumstances - Mr. Sloan has disobeyed court orders in New York or Virginia on three occasions by taking the child out of the jurisdiction of the appropriate court and away from the custodial parties. The child indicated a desire to live with Mr. and Mrs.. Roberts and not with Mr. Sloan.
The court considered the case of Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10 (1986) regarding preserving the ties with the non-custodial parent. However, under the circumstances, such contact is not in the child’s best interest because of the unusual circumstances in that Mr. Sloan continually takes the child to foreign countries or other jurisdictions when court ordered not to do so.
Mr. and Mrs. Roberts are fit custodians. The presumption in favor of the natural parents has been overcome by evidence. The best interests of the child will be served by placing her with Mr. and Mrs. Roberts. Shortridge v. Deel, 224 Va. 589, 594, 299 S.E. 2d 500, 503 (1983).
Accordingly, it is the judgment of the court that legal and physical custody of Shamema Honzagool Sloan be placed with Mr. and Mrs. Charles Roberts. Visitation by Ismail Sloan is denied at the present time. However, the court will retain jurisdiction of this matter for a period of time to allow Mr. Sloan to petition in the future for visitation rights, if he can demonstrate to the court that Shamema will not be removed from the jurisdiction of the court and that the best interests of the child will be served by allowing visitation. This custodial ruling is in prejudice to the rights of Honzagool Sloan, although her rights to petition for visitation are preserved for such future time as she may wish to petition for visitation.
IT IS SO ORDERED
ENTER: 11/18/91
____________________
J. M. Gamble