No. 24120 - William L., III v.
Workman, Chief Justice, concurring:
I concur to
reiterate the importance of our decision in Michael K.T. v. Tina
L.T., 182 W. Va. 399, 387 S.E.2d 866 (1989), as applied to
William L. v. Cindy E.L. and to point out the shortcomings of the
dissenting opinion to William L.
To adopt the
reasoning of the dissenter to William L. is to view the law
solely in shades of black and white and to neglect what is
necessarily in the best interests of the child involved. To
succinctly state the dissenter's position, if conclusive blood
tests exclude a putative father as the natural father of the
child, as was the case in William L., then such evidence should
be admissible to disprove paternity, despite the impact on the
child involved and no matter how long the individual has held
himself out to be the father of the child.
The dissenting opinion places much weight on the father's testimony (despite the fact that we have no record of testimony!), wherein the putative father apparently testified that he never spoke about the child's paternity or mentioned blood tests until after the divorce. It is evident from the family law master's order, however, that the testimony
was disputed.See footnote
1 1 Both the family law master and the circuit
court, who had the parties before them, chose to believe the
Appellee and now the dissenter wants us to reject the factual
findings of the family law master and circuit court without even
having a record!
As we stated
in Michael K.T., "absent evidence of fraudulent conduct
which prevented the putative father from questioning paternity,
this Court will not sanction the disputation of paternity through
blood test evidence if there has been more than a relatively
brief passage of time." 182 W. Va. at 405, 387 S.E.2d at
872. Unfortunately, this Court's review is limited to the record
before us. It is very difficult under our standard of reviewSee footnote 2 2 to
usurp the findings of the fact of the factfinder, but certainly
we cannot disturb findings of fact when we do not even have a
I write separately also to re-emphasize that the concepts behind Michael K.T. are based on sound public policy. Further, the law favors "the innocent child over the putative father in certain circumstances." Id. What the majority placed emphasis on in
reaching its decision is that the lower court obviously
determined that the more time that elapsed that the putative
father may very well have known that he was not the natural
parent (yet raised no dispute as to paternity), the greater the
deterioration of the child's opportunity for finding, knowing and
loving his natural father. Id. (quoting Commonwealth ex rel.
Gonzalez v. Andreas, 369 A.2d 416, 419 (1969).
Based on the foregoing, I respectfully concur with the majority opinion.
Footnote: 1 1 The mother testified that at the time of the child's birth, she asked the putative father, her husband, to have blood tests and he refused. Further, she stated that blood tests were discussed with her spouse two year later, and again, he refused. Most importantly, during this time, the family law master found that the putative father "acted as a normal father towards James L." Majority opinion at 3 (emphasis added).
Footnote: 2 2 See Syl Pts. 1 and 3, Stephen L. H. v. Sherry L. H., 195 W. Va. 384, 465 S.E.2d 841 (1995).