Lowe v. Lowe

• Decision Date: 01 July 1988
• Docket Number: No. CC974,CC974
• Citation: 370 S.E.2d 731,179 W.Va. 536
• Court: West Virginia Supreme Court
• Parties: Brenda LOWE v. Robert LOWE, II.

Page 731

370 S.E.2d 731

179 W.Va. 536

Brenda LOWE v. Robert LOWE, II.

No. CC974.

Supreme Court of Appeals of

West Virginia.

July 1, 1988.

Syllabus by the Court

1. Under West Virginia Code § 48-2-15 (1986 Replacement Vol.), a circuit court may, in the divorce order, provide for joint custody of minor children when the parties so agree and when, in the discretionary judgment of the circuit court, such an agreement promotes the welfare of the child.

2. "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." Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948).

3. In determining if joint custody is appropriate, a court must make a sufficient factual inquiry to insure that such an arrangement is, indeed, in the best interest of the child.

4. A cardinal criterion for an award of joint custody is the agreement of the parties and their mutual ability to co-operate in reaching shared decisions in matters affecting the child's welfare.

5. When the parties to a divorce action propose shared custody, they should submit to the Court a joint parenting agreement specifying each parent'spowers rights, and responsibilities and proposing procedures for making changes to the agreement or for mediating or otherwise resolving disputes and alleged breaches.

Cynthia G. Bowles, Martinsburg, for appellee.

Steven M. Askin, Martinsburg, for appellant.

McGRAW, Justice:

This proceeding involves a question certified to this Court by the Circuit Court of Berkeley County pursuant to West Virginia Code § 58-5-2 (Supp.1987). That court asks whether, in a divorce action, it has the authority to grant joint custody of minor children to the parties. We find that under West Virginia Code § 48-2-15 (1986 Replacement Vol.), a circuit court may, in the divorce order, provide for joint custody of minor children when the parties so agree and when, in the discretionary judgment of the circuit court, such an agreement promotes the welfare of the child.

The appellee filed for divorce on September 11, 1985. During most of the protracted pendency of this action, the child was declared a ward of the court, but remained in the marital home with the parents alternating occupancy every three days. At a hearing before a family law master on March 12, 1987 the parents reached a complex joint custody agreement, which was incorporated into the master's recommendation to the circuit court. A dispute arose several weeks later as to interpreting the agreement, and the Appellee filed a "Petition for Review" with the circuit court questioning the validity of the joint custody agreement. Before reaching the validity of the parties' proposed custody agreement, the circuit court questioned its authority to grant joint custody under any circumstances and the parties jointly moved to certify the question to this Court.

Code § 48-2-15 controls the relief which may be ordered by a circuit court granting a divorce. See State ex rel. Watson v. Rodgers, 129 W.Va. 174, 39 S.E.2d 268 (1946); see also Bego v. Bego, 177 W.Va. 74,350 S.E.2d 701 (1986). Upon ordering a divorce, "[t]he court may provide for the custody of minor children of the parties, ... as may be appropriate under the circumstances." W.Va.Code § 48-2-15(b)(1). ¹ Thus, the Legislature has chosen to vest considerable discretion in the courts in so far as custody decisions are concerned.

The principle has long been established that "[i]n 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." Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948); see Syl. Pt. 1, Holestein v. Holestein, 152 W.Va. 119, 160 S.E.2d 177 (1968); Syl. Pt. 1, Settle v. Settle, 117 W.Va. 476, 185 S.E. 859 (1936). In cases where the issue of custody is contested, we presume that it is in the best interest of a child of tender years to be placed with the primary caretaker, if he or she is fit, Syl. Pt. 2, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981), and the discretion of the circuit court is limited.

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.

Syl. Pt. 6, id. Thus, this Court has repeatedly found joint custody to be inappropriate when each parent seeks exclusive custody of the child or either parent contests the other parent's petition for custody. M.S.P. v. P.E.P., 178 W.Va. 183, 358 S.E.2d 442 (1987); Rose v. Rose, 176 W.Va. 18, 340 S.E.2d 176 (1985); Wagoner v Wagoner, 172 W.Va. 687, 310 S.E.2d 204 (1983).

When, however, joint custody is sought by both parents, other considerations apply. The Supreme Court of New Jersey has observed that "[a]t the root of the joint custody arrangement is the assumption that children in a unified family setting develop attachments to both parents and the severance of these attachments is contrary to the child's best interest."...