Dottie S. v. Christopher S., 19684
| Decision Date | 16 July 1991 |
| Docket Number | No. 19684,19684 |
| Citation | 185 W.Va. 467,408 S.E.2d 46 |
| Court | West Virginia Supreme Court |
| Parties | DOTTIE S., Plaintiff Below, Appellant, v. CHRISTOPHER S., Defendant Below, Appellee. |
Syllabus by the Court
1. "A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts." Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).
2. "Acts of sexual misconduct by a mother, albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the mother for child custody unless her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child of being raised by a mother with such a defective character." Syllabus point 4, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978).
James Paul Geary, II, Petersburg, for appellant.
Jerry D. Moore, Franklin, for appellee.
This is an appeal by Dottie S. from an order of the Circuit Court of Grant County awarding custody of her infant daughter to the child's paternal grandparents. On appeal, the appellant claims that the trial court erred in finding that she was an unfit parent to have permanent custody of the child, and she also claims that the court erred in awarding custody to the grandparents without making a finding that both natural parents were unfit. After reviewing the record and the questions presented, this Court believes that the record is inadequately developed for a fair determination of the merits of the appellant's claims. The Court also believes that, regardless of whether the appellant is entitled to custody of the child, she has been afforded inadequate visitation rights. The judgment of the circuit court is, therefore, reversed, and this case is remanded for further development.
On July 17, 1987, the appellant filed a complaint in the Circuit Court of Grant County praying for a divorce from her husband, Christopher S., and praying for custody of her four-year-old daughter, Tonya S. Christopher S. filed an answer and counterclaim in which he alleged that the appellant had been guilty of adultery and cruel and inhuman treatment and that she was not a fit person to have custody of the child.
On August 28, 1987, a hearing was held to determine certain preliminary questions. At the conclusion of that hearing, the court placed legal custody of the parties' child with the Department of Human Services and placed physical custody with the appellant during the week and with Christopher S. on weekends. The arrangement involving Christopher S. was later modified when it was alleged that he had committed acts of child abuse.
The general issues in the case were presented to a family law master at a hearing on May 31, 1988. In the course of that hearing, it was alleged that the appellant had been involved in an incestuous relationship with a person alleged to be her half-brother, Ed V.M., and that the relationship rendered her an unfit parent to have custody of her infant child. The appellant, who had not met Ed V.M. until she was an adult, and who apparently was unaware of the alleged familial relationship until after she knew him, denied any sort of improper or sexual relationship. Other witnesses, however, testified that they had observed the appellant kissing Ed V.M. and that he had been observed outside the appellant's trailer without a shirt and with pants unzipped and hanging on his hips.
Further evidence indicated that the appellant, except for her possible involvement with Ed V.M., had been a good mother. There was also evidence suggesting that the appellant had been the primary caretaker.
At the conclusion of the hearing, the family law master found that both the appellant and her husband had provided primary caretaker functions for the child, but between the two, the appellant had been the primary caretaker. The master also found that the appellant was a fit and proper person to have custody of the child, except for the relationship with Ed V.M. He found that that relationship was unacceptable, and specifically indicated that his finding that the appellant was a fit and proper person to have custody was predicated upon Ed V.M. ceasing to cohabit with the appellant.
Exceptions were taken to the family law master's conclusions, and the Circuit Court of Grant County took the questions raised under advisement. On September 12, 1988, the court concluded that the appellant's relationship with Ed V.M. was, in fact, incestuous, and that because of it the appellant was not a fit or proper person to have custody of the child, and that it was in the best interest of the child that custody be awarded to the paternal grandparents.
The appellant filed a motion for reconsideration wherein she alleged that there was newly discovered evidence that would show that Ed V.M. was not her half-brother. By order dated October 25, 1988, the parties were granted a divorce, but the trial court refused to alter the decision regarding custody.
In the present proceeding, the appellant's first contention is that the trial court erred in awarding custody of the infant child to the paternal grandparents without making a finding that both natural parents were unfit.
This Court consistently recognized that:
A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.
Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960). See also In re Custody of Cottrill, 176 W.Va. 529, 346 S.E.2d 47 (1986); Ford v. Ford, 172 W.Va. 25, 303 S.E.2d 253 (1983); Hatfield v. Hatfield, 171 W.Va. 463, 300 S.E.2d 104 (1983); Leach v. Bright, 165 W.Va. 636, 270 S.E.2d 793 (1980); Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975); State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969).
In J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978), the Court considered the question of what constitutes fitness bearing on the right of a parent to have custody of his or her child. In syllabus point 4 of that case, the Court specifically ruled that:
Acts of sexual misconduct by a mother, albeit wrongs against...
To continue reading
Request your trial