Garska v. McCoy

• Decision Date: 26 May 1981
• Docket Number: No. 14962,14962
• Citation: 167 W.Va. 59,278 S.E.2d 357
• Court: West Virginia Supreme Court
• Parties: Michael GARSKA v. Gwendolyn McCOY. 1 Stergil ALTIZER, et al., Plaintiffs Below v. Jonathan Conway McCOY, Defendant Below, Stergil Altizer, et al., etc., Defendants Below, Gwen McCoy, Intervenor.

Page 357

278 S.E.2d 357

167 W.Va. 59

Michael GARSKA v. Gwendolyn McCOY. ¹

Stergil ALTIZER, et al., Plaintiffs Below v. Jonathan Conway McCOY, Defendant Below, Stergil Altizer, et al., etc., Defendants Below, Gwen McCoy, Intervenor.

No. 14962.

Supreme Court of Appeals of West Virginia.

May 26, 1981.

Syllabus by the Court

1. W.Va.Code, 48-2-15 (1980) provides a sex-neutral standard for custody determinations based on the best interests of the child.

2. With reference to the custody of very young children, the law presumes that it is in the best interests of such children to be placed in the custody of their primary caretaker, if he or she is fit.

3. The primary caretaker is that natural or adoptive parent who, until the initiation of divorce proceedings, has been primarily responsible for the caring and nurturing of the child.

4. In establishing which natural or adoptive parent is the primary caretaker, the trial court shall determine which parent has taken primary responsibility for the caring and nurturing duties of a parent.

5. If the trial court is unable to establish that one parent has clearly taken primary responsibility for the caring and nurturing duties of a child neither party shall have the benefit of the primary caretaker presumption.

6. In a divorce proceeding where custody of a child of tender years is sought by both the mother and father, the court must determine in the first instance whether the primary caretaker is a fit parent, and where the primary caretaker achieves the minimum, objective standard of behavior which qualifies him or her as a fit parent, the trial court must award the child to the primary caretaker.

7. The concept of a "child of tender years" is somewhat elastic; obviously an infant in the suckling stage is of tender years, while an adolescent fourteen years of age or older is not, as he has an absolute right under W.Va.Code, 44-10-4 (1923) to nominate his own guardian. Where there is a child under fourteen years of age, but sufficiently mature that he can intelligently express a voluntary preference for one parent, the trial judge is entitled to give that preference such weight as circumstances warrant, and where such child demonstrates a preference for the parent who is not the primary caretaker, the trial judge is entitled to conclude that the presumption in favor of the primary caretaker is rebutted.

Raymond F. Crooks, Charleston, for appellant.

Baer, Napier & Colburn and James Allan Colburn, Huntington, for appellee.

NEELY, Justice:

The appellant, Gwendolyn McCoy, appeals from an order of the Circuit Court of Logan County which gave the custody of her son, Jonathan Conway McCoy, to the appellee, Michael Garska, the natural father. While in many regards this is a confusing case procedurally, since the mother and father were never married, nonetheless it squarely presents the issue of the proper interaction between the 1980 legislative amendment to W.Va.Code, 48-2-15 (1980) which eliminates any gender based presumption in awarding custody and our case of J. B. v. A. B., W.Va., 242 S.E.2d 248 (1978) which established a strong maternal presumption with regard to children of tender years.

In February, 1978 the appellant moved from her grandparents' house in Logan County, where she had been raised, to Charlotte, North Carolina to live with her mother. At that time appellant was 15 years old and her mother shared a trailer with appellee, Michael Garska. In March, Gwendolyn McCoy became pregnant by Michael Garska and in June, she returned to her grandparents' home in West Virginia.

The appellant received no support from the appellee during her pregnancy, but after she gave birth to baby Jonathan the appellee sent a package of baby food and diapers. In subsequent months the baby developed a chronic respiratory infection which required hospitalization and considerable medical attention. Gwendolyn's grandfather, Stergil Altizer, a retired coal miner, attempted to have his great-grandson's hospitalization and medical care paid by the United Mine Workers' medical insurance but he was informed that the baby was ineligible unless legally adopted by the Altizers.

In October, 1979 Gwendolyn McCoy signed a consent in which she agreed to the adoption of Jonathan by her grandparents, the Altizers. Upon learning of the adoption plan, the appellee visited the baby for the first time and began sending weekly money orders for $15. The Altizers filed a petition for adoption in the Logan County Circuit Court on 9 November 1979 and on 7 January 1980 the appellee filed a petition for a writ of habeas corpus to secure custody of his son.

Both the adoption and the habeas corpus proceedings were consolidated for hearing and the circuit court dismissed the adoption petition upon finding that the baby had not resided with the Altizers for the requisite six months before the filing of the petition, under W.Va.Code, 48-4-1(c) (1976), since Gwendolyn McCoy had moved away from their home for a short period. The circuit court heard testimony from three witnesses on the father's petition to be awarded custody of the child and then adjourned the hearing without a decision. The hearing on the habeas corpus petition resumed on 27 May 1980 and the circuit court awarded custody of Jonathan McCoy to the appellee based upon the following findings of fact:

(a) The petitioner, Michael Garska, is the natural father of the infant child, Jonathan Conway McCoy;

(b) The petitioner, Michael Garska, is better educated than the natural mother and her alleged fiance;

(c) The petitioner, Michael Garska, is more intelligent than the natural mother;

(d) The petitioner, Michael Garska, is better able to provide financial support and maintenance than the natural mother;

(e) The petitioner, Michael Garska, can provide a better social and economic environment than the natural mother;

(f) The petitioner, Michael Garska, has a somewhat better command of the English language than the natural mother;

(g) The petitioner, Michael Garska, has a better appearance and demeanor than the natural mother;

(h) The petitioner, Michael Garska, is very highly motivated in his desire to have custody of the infant child, and the natural mother had previously executed an adoption consent, for said child.

The appellant asserts the following errors: (1) the circuit court failed to apply the tender years presumption in favor of the mother articulated in J. B. v. A. B., W.Va., 242 S.E.2d 248 (1978) and earlier cases since it was the operative rule of law at the time the pleadings were filed; (2) the circuit court established and applied arbitrary and inappropriate standards to determine the relative fitness for custody of the parties; and (3) the circuit court erroneously refused to allow the petitioner to withdraw her "consent for adoption" even though the adoption petition itself had been dismissed.

While the issue of adoption by the Altizers does, indeed, enter into this case, in the final analysis the entire dispute comes down to a custody fight between the natural father and the natural mother. Although Code, 48-2-15 (1980) is concerned with the award of custody in a divorce proceeding, that section is the preeminent legislative expression of policy concerning custody between natural parents in that it abolishes all gender based presumptions and establishes a "best interest of the child" standard for the award of custody. The final order was entered after the operative date of the 1980 Amendment to W.Va.Code, 48-2-15, the relevant part of which provides:

In making any such order respecting custody of minor children, there shall be no legal presumption that, as between the natural parents, either the father or the mother should be awarded custody of said children, but the court shall make an award of custody solely for the best interest of the children based upon the merits of each case.

Furthermore, the case was tried below on the theory that Code, 48-2-15 (1980) applies to this case to the extent that it obliterates the presumption of J. B. v. A. B., supra, that children of tender years should be awarded to the mother.

This Amendment was enacted in response to J. B. v. A. B., where we said in syl. pt. 2;

In a divorce proceeding where custody of a child of tender years is sought by both the mother and father, the Court must determine in the first instance whether the mother is a fit parent, and where the mother achieves the minimum, objective standard of behavior which qualifies her as a fit parent, the trial court must award the child to the mother.

In the case before us the father, by providing fifteen dollars a week child support, probably showed sufficient parental interest to give him standing to object to an adoption. ² However, there is no evidence before us to indicate that the mother was an unfit parent and, consequently, no justification for the trial court to remove custody from the primary caretaker parent and vest it in a parent who had had no previous emotional interaction with the child.

I

It is now time to address explicitly the effect which the strong presumption in favor of the primary caretaker parent articulated in J. B. v. A. B., supra has upon the equity of divorce and child custody dispositions. In this regard we must be concerned not only with those disputes which are decided by trial judges in court but also with all those cases which are settled outside of court in reliance on the rules we generate.

The loss of children is a terrifying specter to concerned and loving parents; however, it is particularly terrifying to the primary caretaker parent who, by virtue of the caretaking function, was closest to the child before the divorce or other proceedings were initiated. While the primary caretaker parent in most cases in West Virginia is still the mother, nonetheless, now that sex roles are becoming more flexible and high-income jobs are opening to women, it is conceivable that the...