Wagoner v. Wagoner, 15824

• Decision Date: 13 December 1983
• Docket Number: No. 15824,15824
• Citation: 172 W.Va. 687,310 S.E.2d 204
• Parties: Margaret Jane WAGONER v. Thomas Linn WAGONER.
• Court: West Virginia Supreme Court

Page 204

310 S.E.2d 204

172 W.Va. 687

Margaret Jane WAGONER v. Thomas Linn WAGONER.

No. 15824.

Supreme Court of Appeals of West Virginia.

Dec. 13, 1983.

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." Syl. pt. 2, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

2. "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, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).

David J. Joel, Wheeling, for appellant.

W.T. Weber, Jr., Weston, for appellee.

PER CURIAM:

Margaret Jane Wagoner appeals a final order of the Circuit Court of Lewis County, which awarded joint custody of her two minor children pursuant to her divorce from Thomas Linn Wagoner. She contests the trial judge's finding that her ex-husband was the primary caretaker parent, and the award of physical custody of the children to him during the school year. For the reasons set forth below, we reverse the circuit court and remand the case with directions.

In syllabus point 2 of Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981), we established a gender-neutral standard for initial custody determinations:

"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."

In deciding who is the primary caretaker, the court must determine which parent, before the divorce, took primary responsibility for the caring and nurturing of the child, including:

"(1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends' houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic."

Garska, 167 W.Va. at 69-70, 278 S.E.2d at 363. If this primary caretaker is found to be fit to have custody, the court has no discretion to award custody to the other parent:

"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, Garska v. McCoy, supra.

In the case before us, the parties were granted a divorce on the grounds of irreconcilable differences. The appellant asked for custody of their two children, then ages 3 and 4; her husband sought joint custody. Following two hearings, the trial judge found that both parents were fit to have custody, and that the father had been the primary...