Visitation and Custody of Senturi N.S.V.

• Decision Date: 25 October 2007
• Docket Number: No. 33334.,33334.
• Citation: 652 S.E.2d 490
• Court: West Virginia Supreme Court
• Parties: In re VISITATION AND CUSTODY OF SENTURI N.S.V.

652 S.E.2d 490

In re VISITATION AND CUSTODY OF SENTURI N.S.V.

No. 33334.

Supreme Court of Appeals of West Virginia.

Submitted October 9, 2007.

Decided October 25, 2007.

Syllabus by the Court

1. "In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. "In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." Syllabus point 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

3. "If a natural parent intends to voluntarily transfer temporary custody of a child to a third person, then the document effecting the transfer should expressly provide that it is the intention of the parent to temporarily transfer custody to the third person." Syllabus point 5, Overfield v. Collins, 199 W.Va. 27, 483 S.E.2d 27 (1996).

4. "If a natural parent intends to voluntarily transfer permanent custody of a child to a third person, then the document effecting that transfer should expressly provide that it is the intention of the parent to permanently transfer the custody of the child to the third person." Syllabus point 4, Overfield v. Collins, 199 W.Va. 27, 483 S.E.2d 27 (1996).

5. "The reference to `exceptional cases' contained in W. Va.Code § 48-9-103(b) (2001) (Repl. Vol. 2004) signifies unusual or extraordinary cases, and, accordingly, a court should exercise its discretion to permit intervention in such unusual or extraordinary cases only when intervention is likely to serve the best interests of the subject child(ren)." Syllabus point 2, In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005).

6. "A psychological parent is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child's psychological and physical needs for a parent and provides for the child's emotional and financial support. The psychological parent may be a biological, adoptive, or foster parent, or any other person. The resulting relationship between the psychological parent and the child must be of substantial, not temporary, duration and must have begun with the consent and encouragement of the child's legal parent or guardian. To the extent that this holding is inconsistent with our prior decision of In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990), that case is expressly modified." Syllabus point 3, In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005).

7. "A parent has the natural right to the custody of his or her infant child, 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 transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts." Syllabus point 1, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).

Hoyt Glazer, Legal Aid of West Virginia; David Lockwood, Lockwood & Lockwood, Huntington, WV, for Appellant, Misty C.V Steven M. Bragg, Bragg Salmons, PLLC, Huntington, WV, for Appellees, Christopher and Tanya F.

PER CURIAM:

The appellant herein, Misty C.V.¹ (hereinafter "Misty"), appeals from an order entered October 30, 2006, by the Circuit Court of Cabell County. By that order, the circuit court affirmed an earlier ruling by the Family Court of Cabell County, entered June 23, 2006, wherein the family court determined the appellees herein, Christopher and Tanya F. (hereinafter "Christopher" and "Tanya"), to be the "psychological co-parents" of the minor child involved in these proceedings, Senturi N.S.V. (hereinafter "Senturi"). The circuit court also affirmed the family court's ruling that Christopher and Tanya had a "shared parenting arrangement" with Misty vis-a-vis Senturi. On appeal to this Court, Misty contends that Christopher and Tanya are not the psychological co-parents of Senturi and that she did not enter into a shared parenting arrangement with them. Upon a review of the parties' arguments, the pertinent authorities, and the record presented for our consideration, we reverse the October 30, 2006, order of the Circuit Court of Cabell County and restore Misty's full custodial rights to her daughter, Senturi.

I. FACTUAL AND PROCEDURAL HISTORY

The child at the center of the instant custody dispute, Senturi, was born on March 2, 2004. Thereafter, on April 5, 2004, Senturi's mother, Misty, filed a pro se "Petition for Support/Allocation of Custodial Responsibility" in the Family Court of Cabell County against Senturi's father, Joshua. At the same time, Misty submitted a "Parenting Plan" for the court's approval. By order of the family court entered June 8, 2004, custody of Senturi was awarded to Misty and visitation on Wednesdays and "at other agreeable times" was awarded to Joshua. This order was not appealed.

Subsequently, Misty filed a pro se "Petition for Modification" on April 29, 2005, to establish Joshua's child support obligation and to substitute Fridays for Wednesdays as Joshua's established weekly visitation day. The West Virginia Department of Health and Human Resources (hereinafter "the DHHR") filed a corresponding action against Joshua to collect child support, which action was consolidated with the modification sought by Misty. By order entered August 17, 2005, the family court found Joshua to be capable of paying child support at the rate of $197.00 per month and determined that he was in arrears from April 1, 2004, to February 28, 2005.² Accordingly, Joshua was ordered to pay $1,728 in reimbursement child support;³ $212.39 in child support arrearages;⁴ and, beginning August 1, 2005, $197 per month in child support for Senturi. In the above-referenced order, the family court also ordered the parties "to notify the Bureau for Child Support Enforcement . . . in writing within seven (7) days of any change in any of the following: . . . residential and mailing address[.]"⁵ The family court continued custody of Senturi with Misty.

On February 27, 2006, Misty filed a "Notice of Relocation," pursuant to Senturi's court-ordered parenting plan, in which Misty advised that she planned to move to Corpus Christi, Texas, with Senturi, on or after March 17, 2006, in order to live closer to her extended family, return to school, and pursue employment opportunities. In response to this notice, Joshua filed, on March 7, 2006, a "Motion for Ex Parte Order for Emergency Temporary Custody[;] Respondent's and Intervening Petitioners' Verified Petition for Custody[;] and Response to Notice of Relocation," whereby Joshua and the intervenors, Christopher and Tanya,⁶ sought Senturi's exclusive custody. To support their request for relief, Joshua, Christopher, and Tanya alleged that Senturi had been living with Christopher and Tanya "for the past fourteen months . . . with only limited visitation with the Petitioner [Misty]"; questioned Misty's fitness to retain Senturi's custody; and asserted that Senturi's best interests necessitated transferring custody to Christopher and Tanya. By order entered March 7, 2006, the family court granted the ex parte relief requested, awarding the temporary custody of Senturi to Joshua, Christopher, and Tanya, and placing Senturi in the care of Christopher and Tanya. There is no indication that the family court conducted an inquiry as to Misty's fitness, and the family court, in its order, did not grant Misty any visitation with Senturi.

On March 13, 2006, Misty responded to the ex parte petition, denying the allegations that she was unfit and arguing that the intervenors, Christopher and Tanya, lacked standing. Also on March 13, 2006, Misty filed a "Motion for Ex Parte Order to Set Aside March 7, 2006 Ex Parte Order" wherein she stated that Tanya was Senturi's babysitter and that Tanya had received payments for such services from the DHHR through the Link Child Care Resource and Referral Agency.⁷ Following a hearing on Misty's motion, the family court, by temporary order entered March 20, 2006, continued custody of Senturi with the intervenors, but awarded Misty two hours of supervised visitation with Senturi on Monday, Wednesday, Friday, and Saturday.

By final order entered June 22, 2006,⁸ the family court designated Misty as Senturi's primary residential parent. However, the family court further ordered Misty to share parenting time with Christopher and Tanya because, as found by the family court, Christopher and Tanya have a "shared parenting arrangement with Misty" and are Senturi's "psychological co-parents." Misty appealed this order to the Circuit Court of Cabell County.⁹ The circuit court affirmed the family court's decision by order entered October 30, 2006. From these rulings, Misty now appeals to this Court.

II. STANDARD OF REVIEW

On appeal to this Court, Misty challenges the correctness of the circuit court's order. We have held that,

[i]n reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Guided by these standards, we now consider the...