J. M. S. v. H. A.

Decision Date04 April 1978
Docket NumberNo. 13967,13967
Citation161 W.Va. 433,242 S.E.2d 696
PartiesJ. M. S. v. H. A.
CourtWest Virginia Supreme Court

Syllabus by the Court

A circuit court has jurisdiction to award or deny visitation rights to a father of an illegitimate child.

John C. Purbaugh, Charleston, for appellant.

James B. Hoover, South Charleston, for appellee.

CAPLAN, Chief Justice:

The sole issue on this appeal is whether a circuit court has jurisdiction to award or deny visitation rights to a father of an illegitimate child. The trial court having held, "There being no marriage alleged or proved and no right of visitation being given the determined father by statute or the common law, the Court has no jurisdiction of the subject matter", denied the relief sought and dismissed the complaint. Holding that the court does have jurisdiction in such case, we reverse.

It is acknowledged by both parties to this proceeding that J. M. S. is the father of three children born out of wedlock to the mother, H. A. The children are in the custody of the mother. Contending that he had sought on several occasions and was denied by H. A. the privilege of visiting his children, J. M. S. filed a complaint in the Circuit Court of Clay County, setting forth the foregoing facts and requesting the court to grant him reasonable visitation privileges.

H. A. answered the complaint, acknowledging that J. M. S. is the father of her children but denying that she had consistently refused him such visitation privileges. She therein asserted that it would be detrimental to the best interests and welfare of the children to permit the requested visitation privileges and prayed that the complaint be dismissed. The court denied the relief and dismissed the complaint, as aforesaid, and this appeal followed.

Holding herein that the trial court does have jurisdiction to consider such visitation privileges, the fitness of J. M. S. to visit his children must be considered and determined upon remand before such privileges may be granted or denied.

This precise issue, the right to visitation of one's illegitimate child, is one of first impression in our jurisdiction. Legislative recognition of the right of a parent to the custody of his or her child has been expressly provided in W.Va.Code, 1931, 44-10-7, as amended.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) it was unequivocally established that a father of an illegitimate child must receive the same treatment and consideration as that received by any parent with respect to the termination of his parental rights. As noted in Hammack v. Wise, W.Va., 211 S.E.2d 118 (1975), "The right of a parent to have the custody of his or her child is founded on natural law and, while not absolute, such right will not be taken away unless the parent has committed an act or is guilty of an omission which proves his or her unfitness." More recently we held: "The physical presence of a minor child, together with jurisdiction over the parties seeking custody thereof, is a sufficient basis to permit a court of this state to determine and award custody of such minor child." Point 4, Syllabus, Adams v. Bowens, W.Va., 230 S.E.2d 481 (1976).

We are cognizant of the fact that the above cited cases deal with custody rather than visitation. The difference between these terms is obvious, custody meaning the "care and keeping of anything", Black's Law Dictionary, Revised 4th Ed. and visitation connoting the "act or an instance of visiting", Webster's New World Dictionary, College Edition. Considering these definitions and the plain meaning of the words, it is apparent that custody confers more authority and power upon one in whom it is placed than does the privilege of visiting. If a court has jurisdiction to grant custody, a fortiori, it certainly possesses jurisdiction to grant visitation rights in a proper case.

An examination of cases from other jurisdictions reveals support for the right of...

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18 cases
  • State ex rel. Roy Allen S. v. Stone
    • United States
    • West Virginia Supreme Court
    • 14 Junio 1996
    ...Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); McGuire v. Farley, 179 W.Va. 480, 370 S.E.2d 136 (1988); J.M.S. v. H.A., 161 W.Va. 433, 242 S.E.2d 696 (1978). [196 W.Va. 631] absence or impotence and could not be assailed at all by individuals outside the marriage. Michael K.T......
  • Kessel v. Leavitt
    • United States
    • West Virginia Supreme Court
    • 22 Julio 1998
    ...circuit court has jurisdiction to award or deny visitation rights to a father of an illegitimate child.' Syllabus, J.M.S. v. H.A., 161 W.Va. 433, 242 S.E.2d 696 (1978)."); and Syllabus point 1 of Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 ("The father of an illegitimate child must recei......
  • Marriage of Allen, In re
    • United States
    • Washington Court of Appeals
    • 19 Marzo 1981
    ...N.C. 554, 243 S.E.2d 129 (1978); Hust v. Hust, 295 N.W.2d 316 (N.D.1980); In re Williams, 602 P.2d 1036, 1039 (Okl.1979); J.M.S. v. H.A., 242 S.E.2d 696 (W.Va.1978); In re Adoption of Morrison, 267 Wis. 625, 66 N.W.2d 732 (1954); compare 9A Uniform Laws Annotated, Matrimonial, Family & Heal......
  • Maxwell v. LeBlanc
    • United States
    • Louisiana Supreme Court
    • 4 Abril 1983
    ...299 So.2d 799 (La.1974). See Gay v. Cairns, 298 N.W.2d 313 (Iowa 1980); Pearson v. Clark, 382 So.2d 482 (Miss.1980); J.M.S. v. H.A., 242 S.E.2d 696 (W.Va.1978); State ex rel. Wingard v. Sill, 223 Kan. 661, 576 P.2d 620 (Kan.1978); Sullivan v. Bonafonte, 172 Conn. 612, 376 A.2d 69 (1977); Ga......
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