Clifford v. Paul, No. 31855 (WV 6/17/2005), 31855

Decision Date17 June 2005
Docket NumberNo. 31855,31855
PartiesCLIFFORD K. AND TINA B., Petitioners Below TINA B., Petitioner Below, Appellant, v. PAUL S., IN HIS OFFICIAL CAPACITY AS NEXT FRIEND AND GUARDIAN OF Z.B.S., AN INFANT, Respondent Below, Appellee.
CourtSupreme Court of West Virginia

Page 1

CLIFFORD K. AND TINA B., Petitioners Below
TINA B., Petitioner Below, Appellant,
No. 31855
Supreme Court of West Virginia
Submitted: March 8, 2005
Filed: June 17, 2005

Appeal from the Circuit Court of Clay County, Honorable Jack Alsop, Judge, Civil Action No. 02-D-100.



1. Pursuant to W. Va. Code § 48-1-232 (2001) (Repl. Vol. 2004), a "legal parent" is "an individual defined as a parent, by law, on the basis of biological relationship, presumed biological relationship, legal adoption or other recognized grounds." The phrase "other recognized grounds" refers to those individuals or entities who have been formally accorded parental status or the functional equivalent thereof by way of statute or judicial decree. Such parental status is comparable to the rights and responsibilities of a biological or adoptive parent and includes, but is not limited to, the right to care, control, and custody of the minor child; the right to consent or object to the child's adoption by another person; and the duty to support the child.

2. The reference to "exceptional cases" contained in W. Va. Code § 48-9-103(b) (2001) (Repl. Vol. 2004) signifies unusual or extraordinary cases, and, accordingly, a court should exercise its discretion to permit intervention in such unusual or extraordinary cases only when intervention is likely to serve the best interests of the subject child(ren).

3. A psychological parent is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child's psychological and physical needs for a parent and provides for the child's emotional and financial support. The psychological parent may be a biological, adoptive, or foster parent, or any other person. The resulting relationship between the psychological parent and the child must be of substantial, not temporary, duration and must have begun with the consent and encouragement of the child's legal parent or guardian. To the extent that this holding is inconsistent with our prior decision of In re Brandon L.E., 183 W. Va. 113, 394 S.E.2d 515 (1990), that case is expressly modified.

4. In exceptional cases and subject to the court's discretion, a psychological parent may intervene in a custody proceeding brought pursuant to W. Va. Code § 48-9-103 (2001) (Repl. Vol. 2004) when such intervention is likely to serve the best interests of the child(ren) whose custody is under adjudication.

James Wilson Douglas, James Wilson Douglas, L.C., Sutton, West Virginia, Attorney for the Appellant.

Jeffrey L. Hall, Diana, West Virginia, Attorney for Amicus Curiae, Jeffrey L. Hall in his capacity as Guardian ad Litem for the minor child, Z.B.S.

Leslie Cooper, American Civil Liberties Union, Lesbian and Gay Rights Project, New York, New York, Terri S. Baur, American Civil Liberties Union of West Virginia Foundation, Charleston, West Virginia, Attorneys for Amici Curiae, Lesbian and Gay Rights Project of the American Civil Liberties Union and the American Civil Liberties Union of West Virginia Foundation.

Donald K. Bischoff, Summersville, West Virginia, Attorney for the Appellee.

Mary Downey, Charleston, West Virginia, Gregory R. Nevins, Lambda Legal Defense and Education Fund, Inc., Atlanta, Georgia, Shannon Minter, Courtney Joslin, National Center for Lesbian Rights, San Francisco, California, Attorneys for Amici Curiae, Lambda Legal Defense and Education Fund, Inc., and National Center for Lesbian Rights.

JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.

JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.

DAVIS, Justice:

The appellant herein and petitioner below, Tina B.,1 appeals from an order entered December 2, 2003, by the Circuit Court of Clay County. By the terms of that order, the circuit court denied Tina B.'s petition for custody of the minor child, Z.B.S., who Tina B. had raised from infancy with her now-deceased partner, finding that Tina B. lacked standing to seek an award of custody under W. Va. Code § 48-9-103 (2001) (Repl. Vol. 2004). Additionally, the circuit court granted temporary custody of Z.B.S. to his maternal grandfather, the appellee herein and respondent below, Paul S. On appeal to this Court, Tina B. complains that the circuit court erred by finding that she lacked standing to assert her status as Z.B.S.'s psychological parent and to seek his custody in such capacity. Upon a review of the parties' arguments, the record presented for appellate consideration, and the pertinent authorities, we conclude that Tina B. is a proper party to seek custody of Z.B.S. Accordingly, we reverse the contrary decision of the Clay County Circuit Court.


The facts2 underlying the instant proceeding are not disputed by the parties. Tina B. and the decedent, Christina S., began living together on approximately November 1, 1998. During the course of their relationship, Tina B. and Christina S. decided they would like to have a child together. Thereafter, Clifford K., petitioner below, was enlisted to help Christina S. conceive a child. Z.B.S., the biological child of Christina S. and Clifford K., was born on December 25, 1999, and, following his birth, Z.B.S. resided continuously with Christina S. and Tina B. as their son.

Tragically, Christina S. died as a result of injuries she sustained in a motor vehicle accident on June 1, 2002. On that same day, while Tina B. was still hospitalized as a result of injuries she had sustained in the aforementioned accident, Paul S., the father of Christina S. and the maternal grandfather of Z.B.S., assumed physical custody of the child. Afterwards, on June 10, 2002, Paul S. sought the office of and was appointed guardian of Z.B.S. by the Clay County Commission as a result of Christina S.'s death. Thereafter, Clifford K. and Tina B. jointly filed a petition for custody of Z.B.S. on July 16, 2002; although Clifford K. was a party to the petition for custody, he apparently did so on Tina B.'s behalf and not because he sought custody of Z.B.S. for himself.3

By Temporary Order entered September 23, 2002, the Family Court of Clay County awarded equal visitation with Z.B.S. to both Tina B. and Clifford K., and granted Paul S. temporary custody of Z.B.S. Upon the conclusion of this hearing, a guardian ad litem for the minor child was appointed and extensive psychological evaluations of all parties were conducted. The guardian ad litem recommended that sole custody of Z.B.S. be awarded to Tina B. because she is his "second mother, by design and in actuality," with reasonable visitation by Clifford K., Paul. S., and Paul S.'s wife, who is Christina S.'s mother and Z.B.S.'s maternal grandmother. In light of the guardian ad litem's recommendations and the psychological evaluations, the family court, by Final Order entered July 25, 2003, found that "Tina B[.] has standing to seek custody of Z.B.S. as a `psychological parent' due to the significant caretaking services she provided prior to the death of Christin[a] S[.] and the strong parent-child bond that now exists between Tina B[.] and Z.B.S." The court then awarded primary custody of Z.B.S. to Tina B. based upon Tina B.'s status as the child's psychological parent and because such a placement served the child's best interests by promoting "[t]he stability of the child and the continuity of existing parent-child relationships." Shared custody by way of visitation rights, denominated "custodial time," was awarded to both Clifford K. and Paul S. and his wife.

Paul S. appealed the family court's adverse ruling to the Circuit Court of Clay County. By Order of Remand entered December 2, 2003, the circuit court adopted the family court's findings but determined, instead, that "[Tina] B[.] does not have standing to seek custody of the infant child" under W. Va. Code § 48-9-1034 because "[s]he is not the legal parent of Z.B.S., [and] . . . the concept of `psychological parent' [has not been extended] to include the former same sex partner of a biological parent." Based upon this ruling, the circuit court transferred temporary custody of Z.B.S. to Paul S., and granted visitation to Tina B. The court further remanded the case to the family court for an award of the permanent custody of Z.B.S. to either Clifford K. or Paul S.

Following the circuit court's order awarding temporary custody of Z.B.S. to Paul S., the family court, by order entered January 6, 2004, refused Tina B.'s motion to stay the circuit court's order and continued custody in Paul S. Thereafter, the family court, on remand, entered a Permanent Custody Order on March 2, 2004, recognizing the circuit court's ruling finding that Tina B. did not have standing to seek custody of Z.B.S.; awarding custody to Clifford K., as the natural father of Z.B.S.; and granting permanent shared parenting time in the form of visitation to Paul S. and Tina B., with Tina's parenting time to coincide with Clifford K.'s parenting time. From that order, Paul S. appealed to the circuit court, which reversed the family court's ruling by Second Order of Remand entered May 3, 2004, concluding that "the family court did indirectly what the family court could not do directly which is to award petitioner, Tina B[.], custody of the infant child, Z.B.S." The circuit court then ordered that Paul S. receive temporary custody of Z.B.S.; awarded visitation to Tina B.; and again directed the family court to determine whether Clifford K. or Paul S. should be granted custody of Z.B.S.

During the pendency of the family court remand proceedings and Paul S.'s ensuing appeal to the circuit court, Tina B. petitioned this Court for appeal from the Clay County Circuit...

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