Charleston, West Virginia
Attorney for the Appellee
Robin Jean Davis
Segal & Davis
Charleston, West Virginia
Attorney for the Appellant
This Opinion was delivered PER CURIAM.
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. "The primary caretaker is that natural or adoptive parent who, until the initiation of divorce proceedings, has been primarily responsible for the caring and nurturing of the child." Syllabus Point 3, Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981).
3. "Acts of sexual misconduct by a mother, albeit wrongs
against an innocent spouse, may not be considered as evidence going
to the fitness of the mother for child custody unless her conduct
is so aggravated, given contemporary moral standards, that
reasonable men would find that her immorality, per se, warranted a
finding of unfitness because of the deleterious effect upon the
child of being raised by a mother with such a defective character."
Syllabus point 4, J.B. v. A.B., 161 W.Va. 332, 242 S.E.2d 248
This is an appeal by Cynthia J. Cummings from a divorce
decree entered by the Circuit Court of Kanawha County on January 9,
1992. That decree awarded the appellant's former husband, Stephen
W. Cummings, custody of the couple's three infant children. In the
present proceeding, the appellant claims that the court erred in
making that custody award. After reviewing the record and the
assertions of the parties, this Court agrees with the appellant.
Accordingly, the judgment of the circuit court is reversed.
In October, 1989, Stephen W. Cummings filed a divorce
complaint against the appellant. He claimed that the appellant had
been guilty of cruel and inhuman treatment and/or adultery, and he
prayed for custody of the couple's three infant children, who were
then four years, three years, and one year and four months old. He
also sought an award of attorney fees.
The appellant filed an answer and counterclaim in which
she sought a divorce on the grounds of irreconcilable differences,
mental cruelty, and habitual drunkenness.
A number of hearings were conducted in the matter, and
ultimately, on July 23, 1991, a special commissioner who had been
appointed in the matter rendered a report. The special
commissioner recommended that the appellant's husband, Stephen W.
Cummings, be awarded the care, custody, and control of the infant
Both parties filed exceptions to the report, and the
Circuit Court of Kanawha County overruled the exceptions. The
court entered the final decree from which the appellant now appeals
on January 9, 1992. In that decree, the court, in light of
evidence showing that the appellant had committed adultery and in
light of the fact that she had admitted the adultery, granted the
appellant's husband a divorce on the ground of mental cruelty. The
court also, as previously indicated, awarded the appellant's
husband custody of the parties' three infant children.
In awarding the appellant's husband custody of the
children, the court found that at the time of the separation of the
parties and for a significant time prior thereto, the appellant's
husband was the primary caretaker of the children. In reaching
this conclusion, the trial court noted that the couple's youngest
child was left in the care of a babysitter during week days and
that the appellant's husband fed the children breakfast, usually
gave the sitter directions, and served as a contact person in the
case of an emergency. The court also found that the appellant's
husband arrived home before the appellant, prepared meals, and fed
the children. Additionally, the court found that the appellant's
husband was more involved than the appellant in the children's
social activities and in transporting the older children to and
from school. The court concluded that although the appellant and
her husband both participated in shopping for groceries, purchasing
and washing clothing for the children, taking the children for
medical care, and providing discipline for the children, the
appellant's husband performed the significant share of the child-care functions.
In the present proceeding, the appellant claims that the
trial court erred in awarding custody of the children to her former
husband. She argues that contrary to the circuit court's findings,
the evidence shows that she has been the primary caretaker of the
children and that the record is devoid of any evidence showing that
she is unfit to have custody of the children. Under the
circumstances, she argues that the best interests of the children
and the law of this State dictate that she have custody of the
In West Virginia the legal guidelines for establishing
custody of very young children are rather clearly set out in Garska
v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (1981). In syllabus point
2 of Garska, the Court stated:
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 syllabus point 3 of the same case, the Court proceeded to state
The primary caretaker is that natural or
adoptive parent who, until the initiation of
divorce proceedings, has been primarily
responsible for the caring and nurturing of
In Garska, the Court, following the principles discussed in J.B. v.
A.B., 161 W.Va. 332, 242 S.E.2d 248 (1978), addressed at some
length the factors to be considered in determining which parent has
been the primary caretaker. The Court stated:
In establishing which natural or adoptive parent is the primary caretaker, the trial court shall determine which parent has taken primary responsibility for, inter alia, the performance of the following caring and nurturing duties of a parent: (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.
167 W.Va. at 69-70, 278 S.E.2d at 363.
In Garska, the Court also recognized the principle set
forth in syllabus point 4 of J.B. v. A.B., supra, that:
Acts of sexual misconduct by a mother, albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the mother for child custody unless her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child of being raised by a mother with such a defective character.
The extensive evidence adduced in this matter shows that
the parties were married in September, 1983, and separated in
October, 1989. For much of the time relevant to the present
proceeding, the appellant's husband worked as the general manager
of a large, well-known restaurant located in Charleston, West
Virginia, and the appellant worked for a computer company.
In the course of their marriage, the parties had three
children, who are the subject of the present custody controversy.
The evidence shows that immediately after the birth of each child,
the appellant took approximately three months off work to care for
the newborn baby and such other of the parties' children as had
already been born. Although there is some evidence that the
appellant's husband assisted in the evenings, the record rather
clearly shows that during these months the appellant was the
primary caretaker of the children and performed all child care
Some three months after the birth of the first child, a
babysitter, Kathy Gawthorp, was hired to care for the child. The
appellant testified that she located Ms. Gawthorp. At least at
times, Ms. Gawthorp cared for the child in her own home, and even
though the evidence is somewhat conflicting on the extent of her
activity, it is clear that the appellant was substantially involved
in taking the child to, and retrieving the child from, Ms.
The arrangement with Ms. Gawthorp did not prove entirely
satisfactory because the appellant was concerned over the safety of
the mountainous road leading to Ms. Gawthorp's house, and,
according to her testimony, she located the Heart & Hand daycare
center to care for the child. Her testimony indicates that, after
enrolling the child in that center, she took the child to it and
picked her up. In this period, her husband normally arrived home
around six in the evening, but always worked on Monday and Friday
or Saturday evenings. She prepared dinner and gave the child a
bath and got her ready for bed.
When the first child was about sixteen months old, the
Heart & Hand arrangement was proving cumbersome, and the
appellant's husband learned that the wife of one of his employees
in the restaurant, one Wendy Fink, would consider working as a
babysitter. He consequently invited Ms. Fink to the parties' home,
where he and the appellant interviewed her and decided to hire her
to babysit the child. Ms. Fink thereafter babysat the child, as
well as the parties' later children, over approximately the next
four years except for gaps when the appellant took time off to care
for the children after the birth of her later children and when Ms.
Fink took time off to have a child of her own. After Ms. Fink
left, the parties employed April O'Dell to babysit the children.
Ms. O'Dell's fiance, like Ms. Fink's husband, worked for the
appellant's husband in the restaurant business.
The evidence on the question of who was the primary
caretaker of the parties' children was somewhat conflicting, but in
this Court's view showed that the appellant was much more
integrally involved than the circuit court's opinion would suggest.
The first factor to be considered in determining who was the
primary caretaker is, as indicated in J.B. v. A.B., supra, who was
responsible for the preparing and planning of meals. In the course
of the proceedings, the appellant submitted some 203 canceled
checks which showed that she had purchased food in various food
stores. Additionally, she adduced the testimony of Lisa Galperin,
a cashier at a local Krogers store, who testified that in the
period 1985 through 1989, the appellant was a regular customer,
While indicating that she had remembered seeing the appellant's
husband in the express line, Ms. Galperin expressed the opinion
that the appellant had checked out the most groceries. Another
witness testified that she had observed the appellant frequently in
the grocery store with the children. The fact that the appellant
was so integrally involved in the procurement of food, as well as
other evidence, suggests that the appellant was quite involved in
the planning of meals.
The evidence on who actually prepared meals is somewhat
conflicting. Certainly, while the appellant was home alone with
the children, she prepared meals. At times, when the children were
under the care of a babysitter or in daycare, the evidence shows
that she also prepared breakfast. At other times, because of
changes in her work schedule which required her to be at work
before her husband, her husband or the babysitter or daycare center
would provide breakfast. Wendy Fink, whose husband worked for the
appellant's husband, testified that up until the spring of 1989,
both parties fixed dinner. On the other hand, there was
substantial evidence that the appellant's husband's duties required
him to remain late at the restaurant on a number of nights each
year, and his own testimony was that he and his wife fed the
The second and third factors to be considered in
determining who has been the primary caretaker are determining who
has been responsible for bathing, grooming, and dressing the
children, and for purchasing, cleaning, and caring for their
The appellant's testimony suggests that while she was
home alone with the children, she bathed, groomed, and dressed
them. A friend of the parties testified that she had seen the
appellant bathing one of the children. On the other hand,
babysitter O'Dell, whose fiance worked for the appellant's husband,
testified that the appellant's husband dressed the kids "most of
the time" in the morning when the appellant's schedule required her
to be at work before her husband.
There was substantial evidence in the form of canceled
checks, as well as testimony, showing that the appellant did most
of the purchasing of clothing for the family and that she was quite
involved in doing laundry.
The question of who provided medical care for the
children is certainly an important factor under Garska and J.B. v.
A.B. in determining who has been the primary caretaker. On this
question, the appellant introduced canceled checks showing that she
had paid for medical care for the children. Janet Wagoner, a
receptionist for the children's pediatrician, Dr. Uy, testified
that the appellant would make appointments for the children, and
the checks introduced showed that the appellant had paid on some
twenty-eight occasions for such services. Ms. Wagoner's testimony
suggested that the appellant's husband started bringing the
children in only after the institution of divorce proceedings. One
child required specialized orthopedic care, and the documents
suggested that the appellant paid for such care on some nineteen
occasions. The records of the orthopedist, Dr. Sale, indicated
that the appellant had been instructed on the care of the child
during the visits or that she had stayed with the child.
There was evidence that both parties were somewhat
involved in arranging for social interaction of the children.
Although there was evidence that the appellant's husband made a
special effort to be with the children on Thursday evenings, there
was substantial evidence showing that the appellant was involved
with taking the children to parks or to be with friends or to be
involved in other activities on Saturday mornings while her husband
worked. She also took the children swimming on occasion, arranged
parties for them, and frequently took them to Cincinnati to visit
her family, which included children the age of her own children.
As previously indicated, both the appellant and her
husband made daycare decisions, although there is evidence that the
appellant located Kathy Gawthorp as the first babysitter and also
located the Heart & Hand daycare arrangement. Her husband located
Wendy Fink and April O'Dell through his employees. There is also
evidence that the appellant wrote the checks to pay for the various
daycare arrangements. Somewhat conflicting evidence suggests that
both parties were contacted on occasion when some problem
concerning the children arose.
The evidence as to who performed the remaining activities
shows that both parties were involved and really predominates in
favor of neither, although the evidence does indicate that the
appellant purchased books for the children and suggests that she
was possibly more involved in educating the children.
In examining the evidence adduced in this case, it is apparent that between the birth of the parties' first child in January, 1985, until the appellant's husband filed for divorce in October, 1989, four years and some odd months later, the appellant took a number of months off work after the birth of each of the parties' three children, and in those periods she served as the only daytime caretaker for the children. During those periods, the appellant's husband continued to work.
After the appellant returned to work, the children were
principally under the care of babysitters during weekdays. In the
evenings both parents were with the children, although on some
evenings, as well as Saturday mornings, the appellant's husband
worked, and the appellant was again the sole caretaker for the
It appears that during a part of the time relevant to
this case, the appellant went to work before her husband and, on
occasion, returned after her husband. As a consequence, the
babysitters apparently had more contact with the husband. Further,
two of the principal babysitters, Wendy Fink and April O'Dell, were
the wife and fiance of two of the appellant's husband's employees.
A substantial portion of the testimony adduced by the
appellant's husband to show that he was the primary caretaker, was
the testimony of Wendy Fink and April O'Dell. In this Court's
view, this testimony perforce focused on the relative roles of the
parties as caretakers in the period after the babysitters arrived
and before the appellant's husband left for work, and in the period
after the appellant's husband returned, but before the babysitters
left. In these periods, the appellant was absent from the home
because of the requirements of her job. Under the circumstances,
it would appear natural for a caretaker to conclude that the
appellant's husband was more integrally involved with the care of
the children. Additionally, since these witnesses had emotional
ties with individuals who were financially dependent on the
appellant's husband, there is some suggestion that their testimony
In a custody proceeding, the focus is not on who has been
the primary caretaker of an infant children during a particular
hour of the day, or in a particular month of the child's life.
Rather, it is on the overall question of who has been the primary
caretaker. See Starkey v. Starkey, 185 W.Va. 642, 408 S.E.2d 394
In the present case, this Court believes that the
evidence shows that in the months surrounding the birth of the
children, the appellant, who stayed home from work, was their
primary caretaker. Further, there were evenings and Saturday
mornings when she was the exclusive caretaker of the children.
Although the evidence suggests that the appellant's husband was a
caring father, a fair reading of the evidence shows that the
appellant was, overall, more deeply involved in the care of the
children than her husband. At times, when she was at home alone
she was rather clearly the primary caretaker, and at the other
times, when the overall evidence is read with the babysitters'
testimony in appropriate context, this Court believes that it
supports the conclusion that the appellant was the primary
caretaker. She was integrally, and this Court believes
predominantly, involved in providing meals, in grooming and
dressing the children, in the provision of medical care, and in the
children's social interaction. She was also at least as involved
as her husband in the other activities which define a primary
As indicated in syllabus point 2 of Garska v. McCoy,
supra, the law presumes that it is in the best interest of young
children to be placed in the custody of the primary caretaker if he
or she is fit, and in reviewing the record in the present case, the
Court fails to find evidence showing that the appellant was an
unfit person to have custody of the children.See footnote 1
Therefore, in line with the rule set forth in syllabus point 2 of Garska v. McCoy, supra, this Court believes that the trial court erred in failing to award the appellant custody of the infant children involved in this case.
The judgment of the Circuit Court of Kanawha County is,
therefore, reversed, and this case is remanded to the circuit court
with directions that the court enter an order awarding the
appellant custody of the infant children involved in this case and
granting such other relief as may be necessary to provide for the
proper support of the infant children.
Footnote: 1Although there were suggestions of sexual misconduct
on the part of the appellant, the Court notes that syllabus point
4 of J.B. v. A.B., supra, acts of sexual misconduct by a mother
may not be considered as evidence going to her fitness for child
custody unless her conduct is so aggravated, given contemporary
moral standards, that reasonable men would find her immorality,
per se, warranted a finding of unfitness because of the
deleterious effect upon the child. Furthermore, there were also
suggestions of misconduct on the part of the appellee in the way
of mental cruelty.
The evidence in the present case fails to show that any misconduct on the part of the appellant was of such a deleterious nature as to render her unfit to have custody of the children.