Charles R. Webb, Esq.
Boyce A. Griffith, Esq.
Giatras & Webb Hamlin, West Virginia
Charleston, West Virginia Attorney for Appellee
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
JUSTICE McGRAW dissents.
In the instant case we reverse a ruling of a circuit court judge sitting as a
special family court judge, and return legal custody of a child to the child's mother.
The father's principal ground for asserting that he should have custody has consistently been the alleged unfitness of the child's mother, and this claim has been primarily based upon an alleged danger to the child from the mother's fiancé. Leaving aside the mother's relationship with her fiancé, the record does not contain substantial evidence upon which a proper finding could be made that the mother, who was originally awarded custody, is not a fit parent.
The most recent ruling in this case on the custody issue was on June 21, 2002, by a circuit judge who had been designated as a special family court judge. The judge found, reviewing exceptions to a family law master's recommended order retaining custody in the father, that the mother's fiancé . . . is a potentially violent person and places the infant child in harm's way, which fact is supported by police records of his violent criminal record and witnesses who testified to his reputation for violence.
The record discloses that the mother's fiancé was arrested in 1970, when he was 17, possibly for stealing, and that he was once fined $300.00 for cursing in public during a domestic dispute. We are not cited to any other evidence that supports the circuit court's finding of a violent criminal record. The other evidence in the record that the father says shows that the fiancé is a potentially violent person and has a reputation for violence is in the form of anecdotal evidence from clearly biased witnesses. This evidence, at best, could support the conclusion that the fiancé has, on several occasions, used hot words and acted intemperately. It could not support a finding that the fiancé is in fact a dangerous and violent person. (See footnote 2)
This Court stated in Syllabus Point 3 of S.H. v. R.L.H., 169 W.Va. 550, 289 S.E.2d 186 (1982) that neither remarriage nor an extramarital relationship per se raises any presumption against continued custody in the parent originally awarded such custody. In Porter v. Porter, 171 W.Va. 157, 159, 298 S.E.2d 130, 132 (1982), this Court stated that,
[t]here must also be a showing that the parent's relationship with another adult has a deleterious effect upon the child and that the child will materially benefit from the change of custody, evidence of which has been noticeably absent from the proceedings at bar.
In J.B. v. A.B., 161 W.Va. 332, 345, 242 S.E.2d 248, 256 (1978), this Court stated that [t]he award of child custody, however, should not be an exercise in the punishment of an offending spouse. In punishing the offending spouse one may also punish the innocent child, and our law will not tolerate that result.
In Judith R. v. Hey, 185 W.Va. 117, 405 S.E.2d 447 (1990), a circuit court directed that the mother had thirty days from the date of the hearing to either marry the man with whom she was cohabiting or to move out and establish separate living arrangements for her and her daughter. In that case, the court further ordered that if neither alternative was met within such time period, custody of the parties' fourteen-year-old daughter would be granted to the father. This Court reiterated that a careful review of the whole record in the Judith R. case was void of any evidence that she was an unfit parent or that her conduct had created any deleterious effect on the child.
In the instant case, the mother was required, when she originally received custody, not to have her fiancé around the child. She violated this requirement. The record suggests that this requirement was grounded in the fact that she was not married to her fiancé, and not in any proven danger that the fiancé posed to the child.
For violating this requirement, the mother argues (and we agree), she was effectively punished by having her child's custody changed to the father/grandparents. When the mother sought to have this custodial ruling changed, the court refused - based upon the finding discussed herein that the fiancé posed a danger to the child.
We have reviewed the entire record, including the transcripts of numerous hearings, and we find that - even giving due deference to the fact that the lower tribunals saw the witnesses - the finding of the fiancé's dangerousness to the child is so contrary to the weight of the evidence that it cannot be sustained on appeal.
Based on the foregoing, we reverse the circuit court's order and award custody of the child to the appellant. We remand the case with instructions that the Family Court Judge of Lincoln County enter such order as is appropriate to promptly and peacefully effectuate a physical change of custody. Thereafter, both parties are to submit appropriate parenting plans, and proposals for visitation, financial arrangements, etc. and to participate in such proceedings as are determined to be proper by the Family Court Judge.