In re Clifford K.

Decision Date08 August 2005
Docket NumberNo. 31855.,31855.
Citation619 S.E.2d 138
CourtWest Virginia Supreme Court
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.
Dissenting Opinion of Justice Maynard July 11, 2005.

Concurring Opinion of Justice Starcher, July 14, 2005.

Concurring and Dissenting Opinion of Justice Benjamin August 8, 2005.





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

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

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, NY, 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.

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

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 a `psychological parent' due to the significant caretaking services she provided prior to the death of Christin[a] S[.] and the strong parent-childbond 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 Court's December 2, 2003, first Order of Remand which had directed the family court to determine who, as between Clifford K. and Paul S., should be granted permanent custody of Z.B.S. By order entered September 2, 2004, this Court granted Tina B.'s petition for appeal; stayed the circuit court's December 2, 2003, and May 3, 2004, orders transferring custody to and maintaining custody in Paul S.; and reinstated the family court's July 25, 2003, Final Order awarding primary custody to Tina B.


The sole issue presented for resolution by the instant appeal is whether the circuit court properly interpreted W. Va. Code § 48-9-103 as precluding Tina B. from seeking custody of Z.B.S. When considering the correctness of decisions rendered by a circuit court that were based upon a family court's ruling, we apply a multifaceted review:

In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). See also Syl. pt. 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003) ("In reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to ade novo review.").

Of particular relevance to the case sub judice is our specific manner of reviewing the correctness of orders determining child custody:

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.


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