Simmons v. Comer, 21459

Citation438 S.E.2d 530,190 W.Va. 350
Decision Date13 December 1993
Docket NumberNo. 21459,21459
CourtSupreme Court of West Virginia
PartiesKenneth R. SIMMONS, Plaintiff Below, Appellee, v. Loretta L. COMER, Defendant Below, Appellant.
Dissenting Opinion of Justice Neely

Dec. 13, 1993.

Syllabus by the Court

1. "With reference to the custody of very young children, the law presumes that it is in the best interests of such children to be placed in the custody of their primary caretaker, if he or she is fit." Syllabus Point 2, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

2. " ' " 'A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her child will be recognized and enforced by the courts.' Syl. pt. 2, Hammack v. Wise, W.Va. , 211 S.E.2d 118 (1975); Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969); Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960)." Syl. pt. 1, Leach v. Bright, W.Va. , 270 S.E.2d 793 (1980).' Syllabus, Ford v. Ford, 172 W.Va. 25, 303 S.E.2d 253 (1983)." Syllabus Point 1, In re Custody of Cottrill, 176 W.Va. 529, 346 S.E.2d 47 (1986).

3. In cases where equitable estoppel was used against a biological mother, a common pattern may be observed. First, the mother represented to the putative father that he is the biological father of the child. Second, the parties were married either before or after the child was born. Third, the putative father accepted and carried out a caring role as father of the child.

4. " 'It is essential to the application of the principles of equitable estoppel that the one claiming the benefit thereof establish that he relied, to his disadvantage or detriment, on the acts, conduct or representation of the one alleged to be estopped.' Point 2, Syllabus, Helmick v. Broll, 150 W.Va. 285, (1965)." Syllabus Point 3, Nisbet v. Watson, 162 W.Va. 522, 251 S.E.2d 774 (1979).

5. Where a biological mother is married to the putative father or, although not married, advises him that he is the biological father and he marries her, he may have standing through the doctrine of equitable estoppel to assert a right to custody of the child. In order to maintain his claim of custody, the putative father must demonstrate that he has developed a caring relationship to the child such that he has become a functioning father. He will also have the benefit of the primary caretaker presumption if the facts so warrant.

6. A nonbiological father must show a caring father-child relationship, which means not only providing for the financial support of the child, but also emotional and psychological support. The relationship must have begun with the consent of the biological mother. It must not have been temporary and there must have been sufficient time for the nonbiological father to become the functioning father.

7. The primary caretaker rule is not extended to a nonbiological father where the biological mother is a fit person and the nonbiological father has not married her.

Jerry D. Moore, Franklin, for appellee.

Marla Zelene Harman, Franklin, for appellant.

MILLER, Justice.

Loretta Comer appeals a May 28, 1992, order of the Circuit Court of Pendleton County that granted custody of her daughter, Nicole, to Kenneth Simmons, while allowing Ms. Comer visitation rights. Ms. Comer argues that the lower court erred in granting custody to Mr. Simmons, who is not the biological father of the child, absent a showing of parental unfitness on her part.


The basic facts, while not in substantial dispute, do contain several gaps. For reasons that are not disclosed, Ms. Comer left her parents' home in Ohio as a teenager and moved to Pendleton County, West Virginia. While there, she attended high school and worked to support herself. In 1985, while still in high school, she gave birth to a daughter, Amanda. The paternity of Amanda has not been legally determined.

Ms. Comer graduated from Franklin High School in 1987 and continued to reside in Pendleton County. In 1988, Ms. Comer engaged in a sexual relationship with Mr. Simmons. Later that year, she returned, with her daughter Amanda, to her parents' home in Ohio. On March 11, 1989, she gave birth to Nicole in Ohio.

In June of 1989, Ms. Comer returned to West Virginia and informed Mr. Simmons of Nicole's birth and asserted that he was the father. Although the record is not developed in this regard, the parties did not marry. Mr. Simmons did, however, in August of 1989, move Ms. Comer, Amanda, and Nicole into his parents' home to live with him. In September of 1989, Ms. Comer found employment with Wampler Food Company, where Mr. Simmons and his mother and father worked. Ms. Comer had no automobile, and, as a consequence, rode to and from work with Mr. Simmons.

A babysitter was employed to care for Amanda and Nicole while the parties worked. Both Mr. Simmons and Ms. Comer shared parental responsibilities for Nicole. Mr. Simmons drove them to doctor appointments and shopping. He paid the babysitter and purchased formula, diapers, and clothing for Nicole. Some assistance was also given by Mr. Simmons' mother by way of cooking and washing.

In January of 1990, Ms. Comer and her two daughters moved out of the Simmons home and into a mobile home about a mile away. Ms. Comer continued to work and was taken to and from work by Mr. Simmons. The two children continued to stay during the day with a babysitter. However, the custody of Nicole was divided and she spent some evenings with the Simmons family and other evenings with Ms. Comer. The testimony diverges as to the degree of custody in the evening, with Ms. Comer claiming it was about evenly divided and Mr. Simmons stating that he had Nicole about 70 percent of the evenings.

Mr. Simmons continued to furnish transportation to doctor appointments and shopping because Ms. Comer had no vehicle. He also contributed substantially to Nicole's support. This arrangement apparently continued until December of 1990. At that point, Mr. Simmons, who had previously retained a lawyer, filed a suit to obtain permanent custody of Nicole. This action was taken because Mr. Simmons was concerned that Ms. Comer intended to move herself and her children back to her parents' home in Ohio. At the time, Mr. Simmons had physical custody of Nicole and refused to permit Ms. Comer to remove Nicole from his parents' home, but did permit her guarded visitation.

At a hearing held before the family law master in January, 1991, brief testimony was taken from Ms. Comer, Mr. Simmons, and Nicole's babysitter. It was at this hearing that Ms. Comer, for the first time, claimed that Mr. Simmons was not Nicole's biological father. At the conclusion of the hearing, the family law master decided that Mr. Simmons should have custody of Nicole during the week and Ms. Comer should have custody from Friday evening until Sunday evening. The family law master concluded that a blood test should be performed to determine whether Mr. Simmons was the biological father. These tests were performed in the summer of 1990, and the results thereof excluded Mr. Simmons from being the father of Nicole.

Thereafter, at a hearing held before the family law master on September 3, 1991, Ms. Comer testified that she now had a third child, Ashley. She further testified that she was planning to move to Ohio to live with her parents and to marry Ashley's father. The family law master temporarily transferred custody of Nicole to Ms. Comer, subject to visitation rights for Mr. Simmons, and pending an order from the circuit court. In his recommended order, the family law master directed that Ms. Comer not move Nicole out of West Virginia without the approval of the court. Despite this order, Ms. Comer, without notice to Mr. Simmons, moved Nicole to Ohio shortly after regaining custody. Mr. Simmons journeyed to Ohio to exercise his visitation rights, but was turned away by Ms. Comer's family.

Another hearing was held before the family law master on September 19, 1991, at which Ms. Comer was represented by her attorney, but did not personally appear. The family law master ordered that Mr. Simmons be allowed to exercise his visitation rights with Nicole and set a hearing for October 3, 1991, before the Circuit Court of Pendleton County.

No new evidence was taken at the hearing before the circuit court on October 3, 1991. The circuit court ordered that the custody arrangements be altered so that Nicole would spend longer continuous periods of time with each parent and ordered that neither interfere with the other's visitation. 1

An evidentiary hearing was held before the circuit court on May 4, 1992. Testimony of several witnesses was heard and reports of home studies from both the Ohio and West Virginia Departments of Health and Human Resources were admitted. The trial court found that both parents were fit parents and that both homes met the needs of the child. It also found that Mr. Simmons had relied upon Ms. Comer's assertion that he was the child's natural father and that, as a result, Mr. Simmons had formed a strong parent-child bond with the child. The circuit court noted that the law favors the rights of biological parents, but determined that the child should continue to have the advantage of a relationship with both Mr. Simmons and Ms. Comer. The circuit court concluded that Mr. Simmons had "parenting skills better than" Ms. Comer, and that Mr. Simmons should, therefore, have custody of the child. In its order of May 28, 1992, the circuit court granted permanent custody of Nicole to Mr. Simmons and gave Ms. Comer liberal visitation rights. Ms. Comer appeals.


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13 cases
  • In re Clifford K.
    • United States
    • West Virginia Supreme Court
    • August 8, 2005
    ...not, however, expound upon the law of psychological parent status or further clarify that term. In 1993, we decided Simmons v. Comer, 190 W.Va. 350, 438 S.E.2d 530 (1993). Simmons involved a concept that is remarkably similar to that of psychological parent status: the functioning father. U......
  • Kessel v. Leavitt
    • United States
    • West Virginia Supreme Court
    • July 22, 1998
    ...have custody. Thus, absent a finding of unfitness, John possessed an enforceable custodial right. Citing Syl. pt. 2, Simmons v. Comer, 190 W.Va. 350, 438 S.E.2d 530 (1993) (quoting Syl. pt. 2, Hammack, 158 W.Va. 343, 211 S.E.2d 118). John also acknowledges that various cases require an unwe......
  • Clifford v. Paul, No. 31855 (WV 6/17/2005)
    • United States
    • West Virginia Supreme Court
    • June 17, 2005
    ...not, however, expound upon the law of psychological parent status or further clarify that term. In 1993, we decided Simmons v. Comer, 190 W. Va. 350, 438 S.E.2d 530 (1993). Simmons involved a concept that is remarkably similar to that of psychological parent status: the functioning father. ......
  • In re K.H.
    • United States
    • West Virginia Supreme Court
    • April 10, 2015
    ...child on a daily basis. See, e.g., In re Clifford K., id.; In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996) ; Simmons v. Comer, 190 W.Va. 350, 438 S.E.2d 530 (1993) ; Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989). Moreover, a psychological parent is one who essentially se......
  • Request a trial to view additional results
1 books & journal articles
  • The Children of Baby M.
    • United States
    • Capital University Law Review No. 39-2, December 2010
    • December 1, 2010
    ...Credit Corp. v. Uzan, 561 F.3d 123, 128 n.5 (2d Cir. 2009) (quoting LEO ROSTEN, THE JOYS OF YIDDISH 92 (1968)). 368 Simmons v. Comer, 438 S.E.2d 530, 540 n.15 (W.Va. 1993) (quoting JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD 98 (1979)). 369 Scott, supra note 2, at 113. 3......

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