J. B. v. A. B.

Decision Date14 March 1978
Docket NumberNo. 13821,13821
CourtWest Virginia Supreme Court
PartiesJ. B. v. A. B.
Syllabus by the Court

1. "With reference to the custody of very young children, the law favors the mother if she is a fit person, other things being equal." Syl. pt. 1, Funkhouser v. Funkhouser, W.Va., 216 S.E.2d 570 (1975).

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.

3. 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 father, the trial judge is entitled to conclude that the presumption in favor of the mother is rebutted.

4. 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.

Radosh & Askin, Steven M. Askin, Martinsburg, for J. B.

Patrick G. Henry III, Martinsburg, for A. B.

NEELY, Justice:

The Court granted this appeal and subsequent leave to proceed by motion to reverse exclusively for the purpose of reevaluating, in light of rapid changes in society, our well-settled law that "(w)ith reference to the custody of very young children, the law favors the mother if she is a fit person, other things being equal * * *." Syl. Pt. 1, Funkhouser v. Funkhouser, W.Va., 216 S.E.2d 570 (1975); part, Syl. Pt. 2, Settle v. Settle, 117 W.Va. 476, 185 S.E. 859 (1936). In this regard we affirm our prior holdings, and consequently, reverse the judgment of the Circuit Court of Berkeley County in this case.

The record shows that the parties 1 were married in 1968 and that they had one child, a girl born in 1970. In September 1975 the parties separated and their child remained with the appellant wife. The appellant, alleging cruelty, filed a divorce complaint against the appellee husband who answered and counterclaimed for a divorce on the same grounds. The circuit court granted a divorce to the appellee husband and awarded him custody of the child, subject to the appellant's reasonable visitation rights. It was a specific finding of the circuit court that the appellant was not a fit person to have permanent custody of the child.

The trial court relied upon one incident of sexual misconduct on the part of the wife as grounds for awarding custody to the husband. The evidence indicates that very late one evening in December 1974, during a period of trial separation between the parties, the appellant and a male companion parked their car in downtown Martinsburg and entered a bar. Later that same evening, the appellant and her male companion left the bar and returned to their parked car where they were observed by the appellee, the appellee's cousin, and the appellee's minister, all of whom had followed the appellant to the area without her knowledge. Although the appellant denies it, the weight of the evidence is that she committed the act of fellatio with her male companion late that night in the parked car, after leaving the bar.

There was voluminous evidence in this case regarding the conduct of the parties which, except for this one incident of sexual misconduct, demonstrates nothing more than aggravated strife between two adults who quarreled, fought, and even on occasion physically abused one another. The evidence shows that the child received from both parents the type of affection and care which this society expects of competent parents. In fact both parties conceded that the other party was a perfectly fit "baby sitter" for the child, and the trial judge noted in his memorandum of opinion that both parties "took good care of the child when they had the child with them" and "both parties loved the child." The evidence covering the aggravated strife between the adults was offered to establish relative degrees of parental competence; however, it was essentially stipulated that the mother was fit, so the evidence of the parties' treatment of one another was introduced primarily to establish fault on the part of each party to the marriage in the hope that the child would be awarded to the less blameworthy party. It appears to be the contention in these types of cases that where a mother has been at fault in the dissolution of a marriage, that fault casts sufficient aspersions on her character to warrant a finding of unfitness. We reject this argument as it violates our rule that a mother is the natural custodian of children of tender years.


The appellee's primary argument in support of the ruling of the trial court is that our presumption of law that a mother is the natural custodian of children of tender years is unconstitutional, State ex rel. Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (N.Y.C.Fam.Ct.1973) or that if the presumption is constitutional, it is certainly unwise. As the proper standard for determining constitutionality is whether the presumption furthers, in a rational way, a legitimate public purpose, we can say that the question of constitutionality and the question of wisdom are inextricably intertwined.

In the first instance, it is incorrect to characterize the presumption as denying the equality of competing parents' rights to have custody of their children, since all parental rights in this respect are subordinate to the interests of the innocent children. The first and overriding principle in child custody cases is the welfare of the children, Funkhouser v. Funkhouser, W.Va., 216 S.E.2d 570 (1975), Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948), and the presumption of maternal preference was initially conceived, and now operates, to serve that principle.

Even if we were to concede, however, that the parents' rights to custody of their children should be subjected to an equal protection analysis, there is no doubt that the presumption would withstand judicial scrutiny. So far, the United States Supreme Court has not decided that gender is a suspect category for equal protection purposes or that classifications based on sex must be subjected to strict scrutiny. It does appear, however, that the United States Supreme Court is examining gender-based distinctions under more stringent standards than the "rational basis" standard of review ordinarily applied to non-suspect categories. The emerging middle level standard is that ". . . classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives." Craig v. Boren, 429 U.S. 190 at 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). Under the West Virginia Constitution, the presumption's validity would depend upon whether it bears a rational relationship to a legitimate state purpose. See State ex rel. Piccirillo v. City of Follansbee, W.Va., 233 S.E.2d 419 (1977); State ex rel. Harris v. Calendine, W.Va., 233 S.E.2d 318 (1977). Should the presumption of maternal preference be measured by either the applicable state or federal standard, or even a strict scrutiny standard, should one be adopted in the future, it would in our view be constitutional. The sociological, biological and evidentiary reasons which are discussed in the following sections provide sufficient grounds for sustaining the presumption, in the absence of compelling and preponderant evidence of a superior alternative.


The appellee's argument of both the unconstitutionality and the unsoundness of our presumption is predicated upon recent, dramatic, social changes, which appear to indicate that the presumption is outmoded in today's world. In support of this position he cites In re Marriage of Bowen, 219 N.W.2d 683 (Iowa, 1974) where Justice McCormick says:

We do not think either parent should have a greater burden than the other in attempting to obtain custody in a dissolution proceeding. It is neither necessary nor useful to infer in advance that the best interests of young children will be better served if their custody is awarded to their mothers instead of their fathers. We previously emphasized the weakness of the inference; we now abandon it. (219 N.W.2d at 688)

Certainly there is respectable authority for the position that the abandonment of gender as a rational determinant of social roles in countless thousands of commercial occupations implies a similar abnegation of the current preference for the mother in the award of custody. See, e. g., Roth, The Tender Years Presumption in Child Custody Disputes, 15 J.Fam.L. 423 (1976-77) and the authorities cited therein. While this Court has carefully evaluated the arguments in favor of determining the relative competence of each parent for child custody on the evidence which each parent produces at a hearing, and awarding custody on that basis, the Court unanimously rejects any rule which makes the award of custody dependent upon relative degrees of parental competence rather than the simple issue of whether the mother is unfit. 2

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