McGuire v. Farley

• Citation: 179 W.Va. 480,370 S.E.2d 136
• Decision Date: 02 June 1988
• Docket Number: No. 18269,18269
• Parties: Calvin McGUIRE v. Kathy FARLEY.
• Court: Supreme Court of West Virginia

Page 136

370 S.E.2d 136

179 W.Va. 480

Calvin McGUIRE v. Kathy FARLEY.

No. 18269.

Supreme Court of Appeals of

West Virginia.

June 2, 1988.

Syllabus by the Court

1. "A 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).

2. "Where a statute serves an urgent and necessary public purpose but is technically deficient for constitutional reasons, this Court will apply the doctrine of the least intrusive remedy and give the statute, wherever possible, an interpretation which will cure its defect and save it from total invalidation." Syllabus Point 2, Anderson's Paving, Inc. v. Hayes, 170 W.Va. 640, 295 S.E.2d 805 (1982).

3. A circuit court has jurisdiction to determine paternity on the petition of a non-custodial alleged father for visitation rights with his illegitimate child when the child has no other legal or determined father.

Louis F. Cooper, Fayetteville, for Calvin McGuire.

James W. Keenan, Fayetteville, for Kathy Farley.

NEELY, Justice:

The appellant filed a petition in circuit court alleging his paternity of a child born out of wedlock to appellee and seeking visitation with the child. The appellee mother denied appellant's paternity and the family law master ordered the parties to have a blood test. The mother contended, however, that the father lacked standing to maintain a paternity action under W.Va. Code, 48A-6-1 [1986]. ¹ After argument, the family law master accepted the mother's position and the circuit court agreed. The circuit court vacated the order for blood tests and held that W.Va.Code, 48A-6-1 [1986] does not permit a non-custodial father of an infant to bring a paternity action.

The father now appeals arguing that denying him the right to maintain a paternity action violates his constitutional right to equal protection. We reverse the decision of the circuit court, and hold that the circuit court has jurisdiction to entertain appellant's petition for visitation rights, notwithstanding that determining visitation rights also implies a determination of paternity.

The appellee, Kathy Farley, is the natural mother of a child named Weston Wayne McGuire, born on 14 April 1987. On 26 June 1987, the appellant, Calvin McGuire filed a petition in the Circuit Court of Fayette County seeking visitation rights with Weston McGuire. In his petition, appellant alleges that he and appellee cohabited from July 1986 to October 1986, during which time Weston McGuire was conceived, and that he is Weston's father. ² Appellee denied these allegations and moved for a compulsory blood test, to which appellant agreed. Then, at a hearing held on 11 December 1987, counsel for the mother admitted appellant was the father of the child.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) the unwed father of three children challenged a state statute that automatically made illegitimate minor children wards of the state upon the death of their mother. The U.S. Supreme Court recognized the father's interest in retaining custody of his children as a substantial right and held that the termination of this right without a hearing violated the Due Process Clause of the Constitution. The Court also held that the state's failure to afford the father a hearing due to his unwed status, while granting other parents a hearing, violated the equal protection clause.

Subsequently, this Court in J.M.S. v. H.A., 161 W.Va. 433, 242 S.E.2d 696 (1978) held that a circuit court has jurisdiction to award visitation rights to the father of illegitimate children. In that case, the mother admitted the paternity of the children, but refused the father visitation rights. The trial court found that neither our statutes nor the common law bestowed visitation rights on the fathers of illegitimate children and held that a circuit court did not have subject matter jurisdiction. We reversed the trial court, finding that although jurisdiction of visitation privileges was not specifically enumerated in our statutes, W.Va. Const. Art, VIII, § 6 provides the circuit courts with the power and authority to handle such cases. "To deprive a parent of visitation rights without a hearing would constitute a denial of due process and equal protection under our state and federal constitutions." 161 W.Va. at 436, 242 S.E.2d 696.

If we were to uphold the decision of the circuit court in the case before us, it would eviscerate our decision in J.M.S. v. H.A. The appellant would have a disembodied right to visit his child that he can never enjoy because he cannot establish himself as the father.

Consequently, to the extent that W.Va.Code, 48A-6-1 [1986] denies standing to the father of an illegitimate child to establish paternity, it is unconstitutional. However, rather than striking all the otherwise constitutional provisions of this statute, we apply our doctrine of the least intrusive remedy, which will then allow us to read this statute to include the appellant as a person entitled to maintain a paternity action.

As this Court said in Syl. Pt. 2 of Anderson's Paving, Inc. v. Hayes, --- W.Va. ----, 295 S.E.2d 805 (1982):

Where a...