McCartney v. Coberly, 14042
| Decision Date | 14 March 1978 |
| Docket Number | No. 14042,14042 |
| Citation | 250 S.E.2d 777 |
| Parties | Beverly Ann McCARTNEY et al. v. John T. COBERLY et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. The granting of temporary custody of a child by its natural parent to a third person is not tantamount to a divestiture of the right of the parent to custody of the child.
2. When a parent transfers temporary custody of a child to a third person, the parent may reclaim custody without showing that the change of custody will materially
promote the moral and physical welfare of the child.
3. Separate written instruments will be construed together and considered to constitute one transaction where the parties and the subject matter are the same, and where there is clearly a relationship between the documents.
Talbott & Alsop, William W. Talbott, Webster Springs, for plaintiff in error.
James A. Kent, Jr., Elkins, for defendants in error.
Beverly Ann McCartney appeals the dismissal of her suit, in which she sought to regain custody of her infant daughter from John and Rebecca Coberly. The trial court viewed the written custody agreement entered into between Mrs. McCartney and the Coberlys as vesting permanent custody in the Coberlys. It then ruled that Mrs. McCartney was required, but failed, to show a change in circumstances sufficient to warrant regaining custody of her child. We reverse.
Custody was transferred by a written custody agreement, pertinent portions of which we set out in the margin. 1 This agreement was prepared by the Coberlys' attorney and Mrs. McCartney signed the agreement on March 6, 1975. At the same time several other documents were also signed, including a "consent to permit adoption", an affidavit waiving notice of any adoption proceeding and relinquishing custody to the Coberlys. This affidavit provided, however, that relinquishment of custody would be void if the infant were found not to be "of sound body and mind."
Testimony at the hearing reveals that within a week after Mrs. McCartney executed these agreements and turned over custody of the infant child to the Coberlys, she changed her mind and requested that the child be returned to her. When the Coberlys refused, the suit was brought. 2
The trial court found that appellant had, by executing all of the written instruments, intended to vest permanent custody of her child with the Coberlys. The court then reasoned that as appellant had granted permanent custody of her child to the Coberlys she was required to show a change in her circumstances sufficient to warrant regaining custody of the child. The trial court concluded that Mrs. McCartney had failed to show a change in circumstances, that the Coberlys were fit custodians, and awarded custody of the child to them.
The pivotal issue in this case is whether Beverly McCartney transferred custody of her child to the Coberlys temporarily or permanently. This issue must be answered by construction of the written custody agreement. It is clear from this agreement that Mrs. McCartney, the natural mother, had the right to demand the return of her child. Moreover, the Coberlys also had "the right to return the child at any time during the probationary period." Manifestly, the custody agreement did not contemplate vesting permanent custody in the Coberlys during the "probationary period of six (6) months."
Furthermore, the Coberlys were not required to adopt the child upon the expiration of the probationary period. Rather, the Coberlys reserved the option to adopt the child only if "they agree that such is in the best interest of all the parties." At best, the custody agreement provided only that the Coberlys could begin adoption proceedings within sixty days after the expiration of the probationary period, if the probationary period were successfully completed without the parties changing their minds.
In Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960), this Court, without dissent, recognized that "temporary custody (of a child) to a third person is not tantamount to a divestiture of the right of the parent to the custody of his or her child." The Court further stated that where the transfer of custody to a third party is merely temporary, the natural parent may reclaim custody of his or her child without showing "that such change of custody will materially promote the moral and physical welfare of the child." 145 W.Va. at 693, 116 S.E.2d at 695. This rule accords full force and effect to a parent's natural right to the custody of his or her infant child a right which is superior to that of a third party who has been given only temporary custody. See Hammack v. Wise, W.Va., 211 S.E.2d 118 (1975).
The trial court erred in holding that Beverly McCartney intended to transfer permanent custody of her child to the Coberlys on March 6, 1975. As a result, the trial court then required the mother to show that a change in custody of...
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...subject matter are the same, and where there is clearly a relationship between the documents.’ Syllabus point 3, McCartney v. Coberly , ––– W. Va. ––––, 250 S.E.2d 777 (1978), overruled on other grounds by Syllabus point 2, Overfield v. Collins , 199 W. Va. 27, 483 S.E.2d 27 (1996)." Syl. P......
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...and the subject matter are the same, and where there is clearly a relationship between the documents." Syllabus point 3, McCartney v. Coberly, ___ W. Va. ___, 250 S.E.2d 777 (1978), overruled on other grounds by Syllabus point 2, Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996).' S......
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...parent in that case because we previously had determined the child's natural mother to be entitled to her custody. See McCartney v. Coberly, 250 S.E.2d 777 (W. Va. 1978), overruled on other grounds by Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 Our next consideration of psychological......