Honaker v. Burnside
| Citation | 182 W.Va. 448,388 S.E.2d 322 |
| Decision Date | 21 December 1989 |
| Docket Number | No. 19372,19372 |
| Parties | Leonard Douglas HONAKER v. Robert A. BURNSIDE, Jr., Special Appointed Judge of Greenbrier County, West Virginia; and Bradley W. Tuckwiller. |
| Court | Supreme Court of West Virginia |
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." Syl.Pt. Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).
2. Although custody of minor child should be with the natural parent absent proof of abandonment or some form of misconduct or neglect, the child may have a right to continued visitation rights with the stepparent or half-sibling.
Winifred L. Bucy, Beckley, for Leonard Douglas Honaker.
Robert A. Burnside, Jr., Beckley, pro se.
Robert B. King, Robert B. Allen, Charleston, for Bradley W. Tuckwiller.
This case is before this Court pursuant to petitioner's request for a writ of mandamus and/or prohibition. The petitioner, Leonard Douglas Honaker, seeks a writ to either require the circuit court to show cause why it should not be compelled to enter a "proper order" or to prohibit enforcement of the order of Robert A. Burnside, Jr., Special Circuit Judge of Greenbrier County, West Virginia. In such order, dated July 17, 1989, the circuit court ordered that custody of Elizabeth Honaker, petitioner's natural child, be fully restored to him after a six-month transition period. Custody of such child had been in her stepfather, respondent Bradley Tuckwiller. By order entered September 19, 1989, the circuit court granted the respondent a stay of execution of such order during the time period necessary for respondent to file a petition for appeal before this Court. The respondent stepfather filed a motion on November 6, 1989, praying that this Court grant an appeal to the orders of the circuit court. We find that the July 17 and September 19, 1989, orders of the circuit court were proper and that the six-month transition period is in the best interests of Elizabeth. However, we remand this case to the circuit court with directions that the circuit judge formulate a specific plan for transition to the natural father that will serve to alleviate any unnecessary trauma to the child, and to establish reasonable visitation rights with the stepfather and half-sibling.
This case involves the custody of a six-year-old girl, Elizabeth Honaker. Elizabeth is the daughter of Leonard Douglas Honaker and Patricia Honaker Tuckwiller. The petitioner and Patricia Honaker Tuckwiller were divorced on November 29, 1984, and pursuant to such divorce order, custody of Elizabeth, who was just over one-year-old at that time, was granted to her mother subject to reasonable visitation by the petitioner.
Subsequent to the divorce, Patricia Honaker married the respondent, Bradley Tuckwiller, on February 14, 1985. They had one child together, Kinder Tuckwiller, who is now three years old. During this marriage, Elizabeth lived with her mother, stepfather and half-brother. These familial surroundings are the only ones she has ever known, and it is undisputed that she has developed a close and loving relationship with her stepfather. The petitioner continued involvement with his daughter subsequent to the divorce and during the remarriage of Patricia Tuckwiller to the respondent. He maintained a relationship with Elizabeth by way of utilizing his visitation rights, by giving her gifts and by making support payments. 1 There is no contention that he is unfit or that he in any way abandoned his parental rights or responsibilities.
Patricia Honaker Tuckwiller was tragically killed in an automobile accident on November 10, 1988. Pursuant to her Last Will and Testament, her husband Bradley Tuckwiller was named as guardian of her two children, 2 and he was later qualified as such. The petitioner filed a Petition for Writ of Habeas Corpus in Greenbrier County on March 23, 1989, attempting to gain custody of his daughter. 3 In the July 17 order the court provided for a transition period in an attempt to lessen the trauma to Elizabeth of such a dramatic change in her life on the heels of the loss of her mother. The court urged the parties through counsel to agree on a transition schedule, but when they were unable to do so, a provision was included within the order granting a stay of execution that the natural father was to have visitation rights with Elizabeth every other weekend during the duration of the stay.
The petitioner asserts that an unoffending natural parent should be entitled to custody of his or her child if such parent has not abandoned such child nor has in any manner been proven unfit. In his petition for writ of mandamus and/or prohibition, the petitioner maintains that he is entitled to immediate custody of Elizabeth and that the six-month transition period ordered by the judge was arbitrary and capricious. We affirm the trial court's determination that custody should be granted to the petitioner with a six-month transition period for transfer of such custody.
Significant to any decision involving custody of an infant child is a determination as to the best interests of such child. "The controlling principle in every such case is the welfare of the child and this Court has repeatedly said that in a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided." State ex rel. Kiger v. Hancock, 153 W.Va. 404, 405, 168 S.E.2d 798, 799 (1969).
The respondent stepfather offered in evidence the expert opinion from Dr. Jeffrey Harlow, a psychologist who examined Elizabeth and Kinder. Dr. Harlow concluded under all the circumstances that it was in both Elizabeth's and Kinder's 4 best interests to stay in the custody of the respondent. Dr. Harlow based his conclusions on the fact that he had observed both Elizabeth and Kinder, and had concluded by talking with them that there would be added trauma in their lives if the home life they have always known was altered in any further significant way at the present time.
Although the welfare of the child is of immeasurable importance, another important principle which must be considered is that of a natural parent's right to raise his or her own child. "The right of a parent to the custody of his or her child is based on natural law and arises because the child is his or hers to care for and rear, ..." State ex rel. Harmon v. Utterback, 144 W.Va. 419, 426, 108 S.E.2d 521, 526 (1959). Although the polar star concept is adhered to by this Court in child custody cases, we have "refused to apply it in cases where the parents have not abandoned the child or have in no manner been proved to be unfit to have the care and custody of such child." Hammack v. Wise, 158 W.Va. 343, 347, 211 S.E.2d 118, 121 (1975). This concept "will not be invoked to deprive an unoffending parent of his natural right to the custody of his child." Hammack, 158 W.Va. at 347, 211 S.E.2d at 121.
There may be situations where the welfare of the child and the natural rights of the parent are in conflict. But, "there is a strong presumption that the welfare of the child is well protected when he is in the custody of an unoffending natural parent." Id. We would not be at all reluctant to alter a natural parent's right to custody of his or her own child upon proof that such parent is unfit or had abandoned his parental rights or responsibilities. 5 There is no such showing of unfitness or abandonment in this case. In his motion seeking an appeal of the circuit court's ruling, the stepfather alleges neither unfitness nor abandonment, but seeks to rely solely on the contention that the best interests of the child should be the only consideration, and that they would be served by continued custody in him.
We therefore hold fast to the well-established precedent 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.
Syl.Pt., Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).
There being no showing of unfitness or abandonment before us, we find that the circuit court did not err in restoring the custody of Elizabeth to her natural father, Leonard Honaker. To deny him such custody "would permit any person who obtains possession of a child and forms an attachment for it to take and keep permanently the child of any worthy parent...." Whiteman, 145 W.Va. at 696, 116 S.E.2d at 697. Although we recognize the attachment and secure relationship between Elizabeth and her stepfather, Bradley Tuckwiller, as well as the strong bond between Elizabeth and Kinder, such bond cannot alter the otherwise secure natural rights of a parent. "The law does not recognize and this Court will not sanction any relationship which produces mutual affection between a child and its temporary custodian and which leads to the annulment of a suitable parent's natural right to the care, custody and control of his child." Id.
We must also consider, however,...
To continue reading
Request your trial
-
West Virginia Dept. of Health and Human Resources ex rel. Wright v. David L.
... ... See Judith R. v. Hey, 185 W.Va. 117, 120, 405 S.E.2d 447, 450 (1990); Honaker v. Burnside, 182 W.Va. 448, 450-51, 388 S.E.2d 322, 324 (1989). However, under the facts of this case, it is not necessary for this Court to choose ... ...
-
State ex rel. Roy Allen S. v. Stone
... ... In Syllabus Point 2 of Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989), we state: "Although custody of minor child should be with the natural parent absent proof of ... ...
-
In re Clifford K.
...v. Collins, 199 W.Va. 27, 483 S.E.2d 27 (1996). Our next consideration of psychological parent status was in Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989). Honaker involved a custodial contest between a child's natural father and her stepfather, with whom she had resided since s......
-
Kessel v. Leavitt
... ... pt. 1, Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989) (recognizing parent's right to the custody of his/her child absent finding that parent is ... ...