David M. v. Margaret M.

• Decision Date: 19 October 1989
• Docket Number: No. 19020,19020
• Court: West Virginia Supreme Court
• Parties: , 58 USLW 2359 DAVID M. v. MARGARET M.

Page 912

385 S.E.2d 912

182 W.Va. 57, 58 USLW 2359

DAVID M. v. MARGARET M.

No. 19020.

Supreme Court of Appeals of West Virginia.

Oct. 19, 1989.

Syllabus by the Court

1. "The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused: however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal." Syllabus Point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975).

2. "With reference to the custody of very young children, the law presumes that it is in the best interest of such children to be placed in the custody of their primary caretaker, if he or she is fit." Syllabus point 2, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

3. The "primary caretaker" is the parent who has taken primary responsibility for, inter alia, the performance of the following caring and nurturing duties of a parent: (1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends' houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e. religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic.

4. In West Virginia we intend that generally the question of which parent, if either, is the primary caretaker of minor children in a divorce proceeding is proven with lay testimony from the parties themselves and from teachers, relatives and neighbors. In most cases, the question of which parent does the lion's share of the chores can be answered satisfactorily and quickly. Once the primary caretaker has been identified, the only question is whether that parent is a "fit parent." In this regard, the court is not concerned with assessing relative degrees of fitness between the two parents such as might require expert witnesses, but only with whether the primary caretaker achieves a passing grade on an objective test.

5. To be considered fit, the primary caretaker parent must: (1) feed and clothe the child appropriately; (2) adequately supervise the child and protect him or her from harm; (3) provide habitable housing; (4) avoid extreme discipline, child abuse and other similar vices; and (5) refrain from immoral behavior under circumstances that would affect the child. In this last regard, restrained normal sexual behavior does not make a parent unfit.

6. In exceptional cases when the trial judge is unsure about the wisdom of awarding the children to the primary caretaker, he or she may ask children of appropriate age and discretion for their preference and accord that preference whatever weight he or she deems appropriate. Such an interview, because of the problems in asking children about their parental preference, should not, however, be routine and neither party may demand such an interview as a matter of right.

7. "Acts of sexual misconduct by a [primary caretaker], albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the [caretaker] for child custody unless [his or] her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that [his or] her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child of being raised by a [primary caretaker] with such a defective character." Syllabus Point 4, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978) as modified by Garska v. McCoy, 167 W.Va. 59, 70, 278 S.E.2d 357, 363 (1981).

8. We do not authorize court-ordered joint custody over the objections of a primary caretaker parent although parents may agree to such an arrangement.

9. "A cardinal criterion for an award of joint custody is the agreement of the parties and their mutual ability to cooperate in reaching shared decisions in matters affecting the child's welfare." Syllabus Point 5, Lowe v. Lowe, 179 W.Va. 536, 372 S.E.2d 730 (1988).

Patrick E. McFarland, Eugene T. Hague, Jr., Redmond, McFarland & Hague, Parkersburg, for appellant, Margaret M.

Philip E. D'Orazio, Parkersburg, for appellee, David M.

NEELY, Justice:

Margaret M. appeals from a divorce order entered by the Circuit Court of Wood County that awarded David M. custody of their son, Timothy, age six. ¹ Mrs. M. contends that the Circuit Court erred in adopting the findings of the family law master which held that although Mrs. M. was the primary caretaker of the child, she was not a fit and suitable person to have permanent care and custody of the child. We agree with Mrs. M. and reverse the trial court's ruling.

The parties were married on 4 August 1979 and lived together in Wood County until 7 September 1988. Mr. M. filed a complaint alleging cruel and inhuman treatment or, in the alternative, adultery and seeking custody of their son, then age five. In her answer, Mrs. M. denied the allegations, filed a counterclaim alleging irreconcilable differences and sought custody of their son. Mr. M., in his reply to the counterclaim, admitted that irreconcilable differences existed between the parties.

The case was referred to a family law master and by agreement of the parties the case was bifurcated with only the divorce and the custody issues to be heard, reserving all other issues for further proceedings. After a hearing on the matter, the family law master found: (1) irreconcilable differences existed between the parties; (2) Mrs. M. was the primary caretaker; (3) Mrs. M. had committed adultery on two occasions over two years; and (4) Mrs. M. was not a fit and suitable person to have custody of the child. The Circuit Court adopted the findings and conclusions of the family law master, granted the parties a divorce, and awarded Mr. M. custody of their child, subject to reasonable visitation rights.

In the present case, although the primary caretaker parent rule as described in Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981), appears to have been followed, the primary caretaker was denied custody through a broad interpretation of the fitness requirement. ² We have noted that our very narrow exception to the primary caretaker rule has of late developed a voracious appetite which, if left unchecked, will allow it to eat the rule. We write today to reaffirm and clarify the benefits of the primary caretaker parent rule to assist the family law masters and the circuit courts in reaching the best interests of the child by applying the primary caretaker parent presumption and its limited requirement of fitness. When properly applied, the primary caretaker parent presumption reduces sharp practices in custody negotiation, prevents fathers and mothers from being penalized on account of their gender, and avoids custody battles that are so unwieldy and intrusive that they make the lives of a divorcing couple and their children even more miserable than they otherwise would be.

I

In the nineteenth century, and in the early part of this century, the law gave fathers custody of their children after divorce, particularly when mothers were held at fault in breaking up the marriage. ³ That rule was a logical extension of the inferior legal status of women, the husband's property right in his family's labor, and the husband's absolute obligation to support his children. ⁴ Even a hundred years ago, however, this rule made little sense in light of human emotions and society's expectation that children would be raised by women. Consequently, it was abolished in this century. By 1950, it was almost always the rule that a mother was the preferred custodian of young children if she was a fit parent. ⁵

But the behavior that different courts characterized as evidencing "fitness" differed dramatically. In application, the rule of maternal preference allowed judges substantial leeway to take a mother's fault into consideration in the award of custody. It was frequently the case, therefore, that sexual "promiscuity" (a term that tends to mean different things when applied to women than to men, with women getting the short end of the double standard) on the part of the woman would cause a court to declare her "unfit." ⁶

Currently, all parental rights in child custody matters are subordinate to the interests of the innocent child. The pole star in child custody cases is the welfare of the child. We have repeatedly acknowledged that the child's welfare is the paramount and controlling factor in all custody matters. J.B. v. A.B., supra note 5, 161 W.Va. at 335-36, 242 S.E.2d at 251; Funkhouser, supra note 5, 158 W.Va. at 969, 216 S.E.2d at 573; Boos v. Boos, 93 W.Va. 727, 117 S.E. 616 (1923); Dawson v. Dawson, 57 W.Va. 520, 50 S.E. 613 (1905).

In J.B. v. A.B., we examined our custody presumption in favor of mothers in light of our concern for the welfare of the child and found:

The welfare of the child seems to require that if at all possible we avoid subjecting children to the trauma of being wrenched away from their mothers, upon whom they have naturally both emotional and physical dependency.

Id. 161 W.Va. at 338-39, 242 S.E.2d at 253 (emphasis in original).

Today, the presumption in favor of mothers is rapidly eroding because the maternal preference presumption discriminates against fathers on the basis of sex. In the 1980 amendment to W.Va.Code, 48-2-15, the legislature provided in relevant part:

... There shall be no legal presumption that, as between the natural parents, either the father or the...