Bucci & Dix

Biological Father’s Eight-Year Custody Battle Finally Concludes

The Supreme Court of Virginia recently affirmed a custody award to a guardian rather than the child's biological father, thus ending a long battle to determine the child's proper caregiver.

In Florio v. Clark, the parents of Jacob Florio never married and were separated at the time of his birth.  In 1997, the Gloucester County Juvenile and Domestic Relations Court entered an order providing that the mother was to have custody with "liberal visitation" to the father.  Soon thereafter, the mother and Jacob moved in with the mother's sister and her husband (the Clarks), and Mr. Clark acted as a surrogate father to Jacob.  During that time, Jacob's biological father made few efforts to contact his son.

In 2001 Jacob's mother developed heart disease and passed away.  Immediately before her passing, his mother had named her sister (Mrs. Clark) to be Jacob's guardian.  Just two days after the mother's death, father petitioned the JDR court for custody of Jacob.  That petition was granted, and Jacob was transferred to his father's custody.  Five months later, the Clarks challenged that custody determination, and the court reconsidered.  It ruled that Jacob's father was unfit to have custody because he was living in a trailer with his poarents, he was without any income, and he had no means of transportation.  Jacob's father appealed the decision to circuit court, which upheld the award of custody to the Clarks.  The father appealed that decision to the Virginia Court of Appeals, where the custody award was again upheld against him.  Jacob's father finally appealed to the Supreme Court in 2009, where the highest court in Virginia agreed with the lower courts.

The Supreme Court stated that custody should be awarded according to the best interests of the child.  In Virginia, courts will grant a biological parent the presumption of fitness to parent, and award him custody unless that presumption is rebutted.  The Court then cited to the father's absence, his lack of support over the years, and his inability to provide for Jacob.  These elements established the biological father's unfitness as a father, and the court awarded the Clarks custody for good.