September 2003 Term
LINDSIE D. L.,
RICHARD W. S.,
Petition for Writ of Habeas Corpus
WRIT GRANTED AS MOULDED
Submitted: November 18, 2003
Filed: December 4, 2003
Marla Zelene Harman, Esq.
Franklin, West Virginia
Guardian ad Litem for Lindsie D.L.
Patricia L. Kotchek, Esq.
Geary & Geary
Petersburg, West Virginia
Attorney for Richard W.S.
Joyce E. Stewart, Esq.
Moorefield, West Virginia
Guardian ad Litem for Cassandra N.S.
JUSTICE MAYNARD delivered the Opinion of the Court.
1. Although custody of minor child should be with the natural parent absent proof of abandonment or some form of misconduct or neglect, the child may have a right to continued visitation rights with the . . . half-sibling. Syllabus Point 2, in part, Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989).
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. The Due Process Clauses of Article III, Section 10 of the Constitution of West Virginia and of the Fourteenth Amendment of the Constitution of the United States protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
4. There is a presumption that fit parents act in the best interests of their children.
5. The jurisdiction of family courts is limited to only those matters specifically authorized by the Legislature, while circuit courts have original and general jurisdiction and other powers as set forth in Article VIII, § 6 of the Constitution of West Virginia. Therefore, circuit courts have jurisdiction of sibling visitation and all other domestic or family law proceedings concurrent in all respects with the jurisdiction of family courts.
(See footnote 1)
a minor, by her next friend and legal guardian, Judy P., appeals
the February 3, 2003, order of the Circuit Court of Grant County that dismissed what she
styled as a Petition or Motion for Visitation, in which she requested the circuit court to
grant her the right to regular visitation with her minor half-sibling. We choose to treat this
appeal as a petition for a writ of habeas corpus which we believe to be the correct procedural
vehicle to determine the issues herein. Accordingly, to allow us to proceed under the habeas
framework, we deem that Lindsie D.L., by her next friend and legal guardian, Judy P., now
asks to have Lindsie's half-sister, Cassandra N.S., brought before the circuit court and, after
due notice to Cassandra's parent, Richard W.S., to have the circuit court, after taking
evidence and upon application of the principles set forth in this opinion, determine whether
visitation of Lindsie with her half-sister, Cassandra, should be awarded.
The petitioner, Lindsie D.L., was born to Dennis L. and Debbie M.L. on
September 27, 1991, in Virginia. Lindsie's father, Dennis, was killed in 1995 in an accident
at a construction site. Lindsie and her mother, Debbie M.L., subsequently moved to Grant
County, West Virginia.
Thereafter, Debbie M.L. began a relationship with the respondent, Richard
W.S., which resulted in the birth of Cassandra N.S. on May 23, 2000. Richard W.S.
acknowledged paternity of Cassandra by a notarized Declaration of Paternity Affidavit the
next day. Also, a certificate of live birth was filed for Cassandra with certification of
personal information by Debbie M.L. in which Richard W.S. was identified as Cassandra's
father. Lindsie and Cassandra lived together as sisters in the same household with their
mother, Debbie M.L., from Cassandra's birth until October 1, 2001. On that date, Debbie
M.L. was tragically killed in an automobile accident.
Pursuant to Debbie M.L.'s will, her mother, Mary Z., became Lindsie's guardian. Cassandra's father, Richard W.S., filed a petition for custody of Cassandra which was challenged by Mary Z. The Family Court of Grant County granted Richard W.S.'s petition, and found:
9. Due to the death of Debbie [M.L.], Petitioner is the sole living parent of Cassandra [N.S.].
10. Petitioner's custodial rights as the sole living parent of Cassandra [N.S.] are superior to those of Respondent[,] and Petitioner has rights protected by the Constitutions of the United States and the State of West Virginia as the legal parent of Cassandra [N.S.] to custody of his child unless he is unfit.
11. There is no evidence that Petitioner is not a fit parent.
12. Petitioner's custody of Cassandra [N.S.] should be confirmed and the Petition should be granted so that Petitioner shall have sole custody of her and sole custodial and decision-making responsibility for her.
Mary Z. subsequently appealed the Family Court order to the Circuit Court of Grant County which affirmed the order.
On December 5, 2002, Lindsie, in her own capacity, and by her legal guardian
and next friend, Judy P.,
(See footnote 2)
filed a Petition Or Motion For Visitation in the Circuit Court of
Grant County in which she asserted, inter alia, that regular visitation would be in the best
interest of the emotional health and well-being of both children. Richard W.S. moved to
dismiss Lindsie's petition. By order of February 3, 2003, the circuit court found that because
there is no common law or statutory right of visitation with a minor half-sibling, the circuit
court has no jurisdiction of the subject matter. Accordingly, the circuit court dismissed the
In its order dismissing Lindsie's petition, the circuit court determined that there
is no legal right to visitation with a minor half-sibling. However, in the 1989 case of
Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322, this Court held in Syllabus Point 2,
in part, that [a]lthough custody of minor child should be with the natural parent absent
proof of abandonment or some form of misconduct or neglect, the child may have a right to
continued visitation rights with the . . . half-sibling. Despite Richard W.S.'s strong efforts
to distinguish Honaker from the instant case, actually the facts are really quite similar.
Honaker involved the custody of a six-year old girl named Elizabeth Honaker. Elizabeth's
parents divorced when she was just a little more than one-year-old and her custody was
granted to her mother subject to reasonable visitation by her father. Subsequent to that
divorce, Elizabeth's mother remarried and the couple had a son together. Elizabeth lived
with her mother, stepfather and half-brother for about three and one-half years until her
mother was killed in an automobile accident. In her last will and testament, Elizabeth's
mother named as guardian of her two children Elizabeth's stepfather. Thereafter, Elizabeth's
natural father sought and was granted custody of Elizabeth. In order to help lessen the
emotional trauma Elizabeth suffered as a result of the death of her mother, the circuit court
provided for a six-month transition period for the transfer of custody. The circuit court also
stayed the execution of the custody order during the time period necessary for the stepfather
to petition for appeal with this Court. Elizabeth's natural father then petitioned this Court
for a writ of mandamus and/or prohibition, arguing that he was entitled to immediate custody
of his daughter.
This Court thereupon denied the writ, and remanded to the circuit court with directions that the circuit court formulate a specific plan for transition to the natural father that would serve to alleviate any unnecessary trauma to Elizabeth, and to establish reasonable visitation rights with the stepfather and the half-sibling. In that case, we explained our rationale as follows:
We must . . . consider . . . what will be in the best interests of Elizabeth with regard to a continued relationship with her stepfather and half-brother Kinder. Undoubtedly, Elizabeth's best interests must be the primary standard by which we determine her rights to continued contact with other significant figures in her life. . . . It is the benefit of the child that is vital. Visitation is . . . aimed at fulfilling what many conceive to be a vital, or at least a wholesome contribution to the child's emotional well being by permitting partial continuation of an earlier established close relationship. Looper v. McManus, 581 P.2d 487, 488 (Okla.Ct.App.1978). . . .
The best interests of the child concept with
regard to visitation emerges from the reality that
[t]he modern child is considered a person, not a
sub-person over whom the parent has an absolute
and irrevocable possessory right. The child has
rights. . . . Another concern is the need for
stability in the child's life. . . . [T]ermination of
visitation with individuals to whom the child was
close would contribute to instability rather than
provide stability. . . . [E]ach case should be
considered on its own facts[.]
Honaker, 182 W.Va. at 452, 388 S.E.2d at 325-26 (internal quotation marks and footnotes omitted). Based on the foregoing, we now conclude that Lindsie may have a right to continued visitation with her half-sibling. (See footnote 3)
We are also mindful, however, that Lindsie's best interest is not the only consideration here. Visitation also must be in the best interest of Cassandra. Further, Lindsie's request for continued visitation implicates Richard W.S.'s fundamental liberty interests as a parent. Clearly, fit parents have the right to bring up their children as they choose. In the recent case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), (See footnote 4) the United States Supreme Court found that the application of a Washington nonparental visitation statute to a parent and her family violated the parent's due process rights to make decisions concerning the care, custody, and control of her daughters. The Supreme Court explained:
The liberty interest at issue in this case _ the interest of parents in the care, custody, and control of their children _ is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the liberty protected by the Due Process Clause includes the right of parents to establish a home and bring up children and to control the education of their own. Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534- 535 (1925), we again held that the liberty of parents and guardians includes the right to direct the upbringing and education of children under their control. We explained in Pierce that [t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Id., at 166.
Troxel, 530 U.S. at 65-66, 120 S.Ct. at 2060.
The statute at issue in Troxel provided that [a]ny person may petition the court
for visitation rights at any time including, but not limited to, custody proceedings. The court
may order visitation rights for any person when visitation may serve the best interest of the
child whether or not there has been any change of circumstances. Troxel, 530 U.S. at 61,
120 S.Ct. at 2057-58. The Supreme Court essentially found two problems with the
Washington statute as written or applied. First, it was breathtakingly broad so as to
effectively permit any third party seeking visitation to subject any decision by a parent
concerning visitation of the parent's children to state-court review. Troxel, 530 U.S. at 67,
120 S.Ct. at 2061. Second, it contain[ed] no requirement that a court accord the parent's
decision any presumption of validity or any weight whatsoever. Instead, the Washington
statute place[d] the best-interest determination solely in the hands of the judge. Id.
According to the Court:
[T]he [grandparents] did not allege, and no court has found that [the parent] was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. . . .
Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.
Troxel, 530 U.S. at 68-69, 120 S.Ct. at 2061 (citation omitted).
This Court also has found a fundamental liberty interest in parents' care of their children. In Syllabus Point 1 of In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973), we recognized that,
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
See also State ex rel. Jeanette H. v. Pancake, 207 W.Va. 154, 161, 529 S.E.2d 865, 872 (2000) (stating that it is . . . well established that a parent has a constitutionally protected liberty interest in retaining custody of his or her child and is, therefore, entitled to certain due process protections when the State seeks to terminate the parent/child relationship); Overfield v. Collins, 199 W.Va. 27, 34, 483 S.E.2d 27, 34 (1996) (recognizing that a natural parent acquires a liberty interest in maintaining a substantial parental relationship with her children vis-a-vis third parties); State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624, 633, 474 S.E.2d 554, 563 (1996) (observing that liberty, within meaning of Due Process Clause, embraces rights of parenthood and holding that a father has a liberty interest in maintaining an established parent-child relationship, regardless of whether the relationship is within traditional and official parameters); and Syllabus Point 3, in part, State ex rel. Brandon L. v. Moats, 209 W.Va. 752, 551 S.E.2d 674 (2001) (holding that the West Virginia Grandparent Visitation Act by its terms, does not violate the substantive due process right of liberty extended to a parent in connection with his/her right to exercise care, custody, and control over his/her child[ren] without undue interference from the state). (See footnote 5)
Accordingly, based on this Court's previous holdings and the decision of the United States Supreme Court in Troxel, we now hold that the Due Process Clauses of Article III, Section 10 of the Constitution of West Virginia and of the Fourteenth Amendment of the Constitution of the United States protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children. We further hold that there is a presumption that fit parents act in the best interests of their children.
Having discussed the applicable legal principles, we now apply these principles to the case before us. Because Lindsie may have a right to visitation with her half-sibling, Cassandra, we believe that a full evidentiary hearing should be held on the propriety of such visitation. There was some discussion during oral argument in regards to which courts, between family courts and circuit courts, have jurisdiction to conduct a sibling visitation proceeding. According to Article VIII, Section 16 of the State Constitution, family courts shall have original jurisdiction in the areas of family law and related matters as may hereafter be established by law. Family courts may also have such further jurisdiction as established by law. Family court jurisdiction is specifically established by law in W.Va. Code § 51-2A-2 (2003). According to W.Va. Code § 51-2A-2(d), [a] family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty-eight [§§ 48-1-101 et seq.] of this code. Circuit courts, in contrast, have original and general jurisdiction except in cases confined exclusively by the Constitution to some other tribunal[.] W.Va. Code § 51-2-2 (1978). Accordingly, we now hold that the jurisdiction of family courts is limited to only those matters specifically authorized by the Legislature, while circuit courts have original and general jurisdiction and other powers as set forth in Article VIII, § 6 of the Constitution of West Virginia. Therefore, circuit courts have jurisdiction of sibling visitation and all other domestic or family law proceedings concurrent in all respects with the jurisdiction of family courts. Any ambiguity concerning which court properly has jurisdiction of a matter should be resolved in favor of recognizing jurisdiction in the circuit courts.
Applying this rule to the instant facts, we note that neither W.Va. Code § 51-
2A-2 nor §§ 48-1-101 et seq. specifically authorizes family courts to hear sibling visitation
issues like the instant one.
(See footnote 6)
Said another way, sibling visitation cases like the one at issue
are not confined exclusively, or at all, to family courts. We conclude, therefore, that the
circuit courts have jurisdiction. Accordingly, we direct the Circuit Court of Grant County
to hold a full evidentiary hearing on whether Lindsie should have regular visitation with her
half-sibling. At this hearing, the circuit court, at a minimum, must take evidence and make
rulings on several issues. First, the circuit court must hear and determine whether or not
visitation with her half-sibling, Cassandra, is in the best interests of Lindsie. Second, the
circuit court must also hear and determine whether such visitation is in the best interests of
Cassandra, Lindsie's half-sister. In making this determination, there is a presumption that
Richard W.S. is acting in the best interests of Cassandra. Therefore, if it is Richard W.S.'s
position that visitation is not in the best interests of his daughter, the burden falls on Lindsie
to rebut this presumption. Third, the circuit court must hear and determine whether or not
an award of visitation will substantially interfere with the parent-child relationship and the
fundamental rights of Cassandra's father, Richard W.S. See State ex rel. Brandon L., 209
W.Va. at 764, 551 S.E.2d at 686 (stating that the issues to be resolved in a grandparent
visitation case are whether an award of visitation is in the best interests of the child and will
not substantially interfere with the parent-child relationship (citation omitted)). Finally,
there may be other issues beyond these threshold considerations to be resolved by the circuit
court at the remand hearing, and those also may be determined by the circuit court with the
input of the parties and counsel. Attorney fees may be one example of such issues, but no
doubt others will arise, all of which must be decided by the circuit court.
(See footnote 7)
Moreover, in the circuit court's discretion, an order granting visitation to Lindsie with Cassandra may place such conditions on visitation that it finds are in the best interests of the children and that also reasonably accommodate the rights and preferences of Richard W.S. Just as one example, the visitation should not result in Cassandra's court- ordered exposure to activities, conditions, circumstances, or influences that are contrary to her parent's reasonable preferences.
Finally, we are confident that the limited right of sibling or half-sibling
visitation recognized herein and in Honaker conforms to the United States Supreme Court's
opinion in Troxel. First, our decision is limited to siblings or half-siblings only, and applies
to no other third party relationships. Therefore, it is not overly broad. Second, we give due
consideration to the fundamental liberty interests of parents and recognize the presumption
that a parent acts in the best interests of his or her child.
For the reasons stated above, Lindsie's petition for a writ of habeas corpus is granted as moulded. We direct the Circuit Court of Grant County to conduct an evidentiary hearing and to decide the propriety of Lindsie's requested visitation with her half-sibling, Cassandra, based on the principles which we have set forth in this opinion.
Writ Granted as Moulded.